- (1.) Heard Learned Counsel for the parties. The appellant is aggrieved against the order of imposition of penalty under section 11AC of the Central Excise Act, 1944 because of the reason of availing illegally CENVAT credit amounting to Rs. 4,45,860/- as basic excise duty and Rs. 8,917/- as educational cess.
(2.) The Assistant Commissioner, Central Excise & Service Tax, vide impugned order, held that the assessee No. 1 intentionally and willfully suppressed and never disclosed the fact of shortage of 1114.647 MT, i.e. 22293 number of bags of their principal input and that commodity was special cement and the assessee took the benefit of Government revenue absolutely illegally and as already observed, intentionally and willfully and knowing it very well that it was not entitled thereto.
(3.) Learned Counsel for the appellant submitted that the basic fact, which should have been considered and weighed in the present case, is that the appellant is engaged in big trade and he received total 61,666.20 MT of cement during the year 1999-2000 to 2005-06, out of which only 1114.647 MT of cement was found short, which is only 1.8% of the quantity of cement received by the appellant. Therefore, this can be transit loss. The appellant, thus, clearly stated before the authority that it is a transit loss. Learned Counsel for the appellant also submitted that the authorities have not recorded finding about guilty of mens rea of the appellant. Further it is submitted that there is a mandatory condition in the proviso 11AC, which says that if the penalty and interest are paid within 30 days from the date of communication of the order of the Central Excise Officer determining the liability, then the assessee can pay 25% of the amount of penalty and interest and rest of the amount can be waived. Such intimation was not recorded in the order itself, nor such offer was given by the Central Excise Officer and therefore, the appellant may be allowed to deposit 25% of the penalty and interest and the rest of the amount may be waived. In this regard, Learned Counsel for the appellant relied upon a judgment of Delhi High Court rendered in the case of K.P. Pouches (P) Ltd. Vs. Union of India & ANo.,2008 1 LCX 222.;