COMMISSIONER OF CENTRAL EXCISE Vs. HINDUSTAN POLYSTER LINES

JUDGEMENT

(1.) THE revenue has approached this Court by filing the instant appeal under Section 35G of the Central Excise Act, 1944 (for brevity, 'the Act') by challenging order dated 25 -1 -2008, passed by the Custom, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (for brevity, 'the Tribunal').

(2.) THE basic requirement for attracting the provisions of Section 11AC of the Act is that there has to be intention to evade the payment of Excise duty. In the present case, a categorical finding has been recorded by the Tribunal that such an intention cannot be presumed because the shortage which was detected during stock verification stood explained and the same has occurred due to clerical mistake. The Tribunal has also found that the assessee has deposited the duty without any protest and, therefore, there is no substance in the plea raised by the revenue in respect of demand of duty. It has also come on record that the assessee has paid the duty upon detection of the shortage before issue of show -cause notice. The Tribunal has further recorded a finding that there is no material to support the clandestine removal of goods. Once the aforementioned findings of fact are there then it is not possible to apply the provisions of Section 11AC of the Act so as to impose penalty. No question of law warranting admission of the appeal would arise. Accordingly, the appeal fails and the same is dismissed.