- (1.)This appeal is filed against the judgment and order dated 18-1-2000 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, South zonal Bench at Madras in Appeal No. E/801 of 1999.
(2.)The Tribunal by the impugned judgment and order confirmed duty demand except on the four matters which were required to be readjudicated on invocation of larger period. The Tribunal also confirmed penalty imposed under Rule 173-Q and for the imposition of mandatory penalty under Section 11-AC, matter was remanded to the Commissioner for de novo consideration. However, that order was limited to the extent only for quantification of the penalty amount. The Tribunal also directed that for non-imposition of penalty in respect of stock transfers from Bangalore Factory to Hosur Factory, whether the applicant was entitled to MODVAT credit was required to be taken into consideration while fixing the penalty under Section 11-AC in the light of the judgment rendered in the case of Engineers Combine v. CCE.
(3.)Learned counsel appearing on behalf of the appellant submitted that the order of imposition of penalty requires to be set aside on the ground that the appellant Company itself has pointed out the mistake committed by some officers of the Company. The Company itself wrote a letter dated 7-1-1998 and voluntarily disclosed the said mistake and stated that the Company was prepared to pay the entire amount even though it was partly barred by limitation. He, however, submitted that this was an inadvertent mistake committed by some officers of the Company which was paying more than rs 28 crores of excise duty during the period in question, as against the so-called non-payment of excise duty for a sum of Rs 2 crores approximately. He pointed out that the proviso to Section 11-A (1) specifically requires that there should be fraud, collusion, wilful misstatement and suppression of facts with an intent to evade duty for levying penalty, but in case the management detects non-payment of duty and discloses the same to the Department and makes voluntary payment of duty, there is no question of imposing any penalty. In support of this contention, learned Senior Counsel for the appellant referred to the provisions of Section 11-A (l) and Section 11-AC of the Central Excise Act and the relevant judgments on the point.