Per D.N. PANDA;
None present for the respondents. Also, there is no request for adjournment.
2. Learned D.R. submits that the first appellate order having granted relief on penalty Revenue is affected, when clandestine removal and duty liability was not challenged by the respondents.
3. Heard Revenue and also perused the record. Learned Commissioner (Appeals) observed that the respondent No. 2 was not directly connected with the clandestine removal of goods. Having such finding he relieved the appellant before him from net. The penalty on Shri Azad Ahmed was Rs. 10,000/-. There is no evidence put forth by the Revenue to contradict the finding of the learned appellate authority below who granted relief to the respondent No. 2. Therefore, appeal against Azaz Ahmed, Authorized Signatory was dismissed. So far as appeal against M/s. Summer Engg. Works Pvt. Ltd. is concerned, learned Commissioner (Appeals) has doubt that whether shortage is on account of clandestine removal or on account of wrong accounting or clerical mistake. Under such doubt he held that no penalty is imposable. The respondents paid the duty before issuance of show cause notice.
4. So far as the levy of penalty under Section 11AC of Central Excise Act, 1944 is concerned, law is well settled by Hon’ble Apex Court in the case of UOI vs. Rajasthan Spg. and Weaving Mills, reported in 2009 (238) ELT 3f (S.C.) In view of the settled position of law by Apex Court it is necessary to remand the matter to the learned adjudicating authority to reach to proper conclusion without any doubt. Factual finding in respect of shortage is necessary along with intention to reach to final conclusion. Taking in to consideration the law laid down by the Apex Court cited above, matter should be disposed of granting fair opportunity of hearing to the respondents. Consequently, first appellate order in respect of M/s. Summer Engg. Works Pvt. Ltd. is set aside and the matter is remanded to the adjudicating authority.