CCE Vs. JAIRAM PHOSPHATES LTD.

JUDGEMENT

(1.) THIS is Revenue's appeal against the impugned order -in -appeal dated 14/02/07 passed by CCE (Appeals), Raipur. The facts of this case leading to this appeal by the Revenue are as under:

(2.) THE learned Departmental Representative, pleaded that since the fact of clandestine clearance of Sulphuric Acid to a sister concern under parallel invoices has not been disputed by the Respondent and since this is a case of deliberate evasion of Central Excise Duty by clandestine clearances, the elements for imposition of penalty under Section 11AC are attracted and, therefore, penalty equal to the duty evaded was called for. He pleaded that Larger Bench judgment in the case of Machino Montell (I) Ltd. is no longer has good law and the same has been reversed by Punjab & Haryana High Court vide judgment reported in .

(3.) I have carefully considered the submissions from both the sides and perused the records. In this case, there is no dispute about the fact that the Sulphuric Acid involving duty of Rs. 1,69,699/ - was cleared without payment of duty in a clandestine manner under parallel invoices. However, since, the entire duty alongwith interest had been paid prior to the issue of the show cause notice, in accordance with the judgment of Hon'ble Delhi High Court in the case of K.P. Pouches (supra), the provision of first proviso would become applicable and the penal liability would be only 25% of the duty involved. Since, the penalty imposed by the Commissioner (Appeal) in the impugned order Rs. 50,000/ - is more than 25% of the duty, I do not find any infirmity in the impugned order. The Revenue's appeal is accordingly dismissed. The cross objection filed by the Respondent also stands disposed off, as above.