IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CEA No. 1 of 2007 Date of Decision 25th August, 2011 ________________________________________________________ Commissioner Central Excise ….Appellant Versus M/s Stesalit Ltd. (Unit-II) ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Appellant: Mr. Sandeep Sharma, Asstt. Solicitor General of India For the Respondent: Mr. Sudeep Singh with Mr. Prince Chauhan, Advocate vice Mr. Rahul Mahajan, Advocate. ____________________________________________________________ (Dev Darshan Sud), J(oral) The Department relies upon the decision of this Court in Commissioner of Central Excise, Chandigarh vs. Ruchira Papers Ltd. 2010 (251) ELT 502 (H.P.) in which the same question as raised in this petition was urged for consideration. The Court holds: “Whether interest and penalty is imposable even if C.E. duty has been deposited by the assessee before Show 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Cause Notice in case where the said duties deposited not voluntarily but on detection by the department.” 2. At the outset we may state that in CEA No. 9 of 2006 titled Commissioner of Central Excise, Chandigarh v. M/s Him Chemicals & Fertilizers Ltd. the identical question of law was involved and we had decided the case in favour of the Revenue. This Court on a conjoint reading of Section 11AC of the Act held that penalty can be imposed even if the excise duty is deposited at the threshold before the issuance of show cause notice. 8. The question as to whether penalty should be imposed or not is a question of fact. Since this question has not been determined by the Commissioner (Appeals) or the Tribunal, whose decisions are based only on the consideration that the excise duty was deposited prior to the issuance of the show cause notice, we set aside the orders of the Commissioner (Appeals) and the Tribunal and remand the case back to the Commissioner (Appeals) for fresh decision on the issue of penalty after determining the question whether the non-payment of duty in the present case was on account of fraud, collusion or any willful misrepresentation or suppression of facts or contravention of any of the provisions of the Excise Act or the Rules made thereunder with intention to evade payment of duty as laid down under Section 11AC.” 2. Learned counsel appearing for the assessee relies upon two decisions of this Court in Commissioner of C. Ex., Chandigarh vs. Tyre Tops, 2010 (250) E.L.T. 338 (H.P.) and Commissioner of C. Ex., Chandigarh vs. Saboo Alloys Pvt. Ltd. 2010 (249) E.L.T. 519 (H.P.) to urge that the question as raised in this appeal does not arise for adjudication. 3. On reading of the order of the Tribunal, we find that the question as raised in this appeal is squarely covered by the decision of this Court in Commissioner of Central Excise, Chandigarh vs. Ruchira Papers Ltd.’case(supra). In these 3 circumstances, the appeal is remanded to the learned Tribunal, which shall consider the case of department as well as of the assessee afresh in accordance with the judgments in Commissioner of Central Excise, Chandigarh vs. Ruchira Papers Ltd. 2010 (251) E.L.T. 502 (H.P.). 4. The contention of the learned counsel appearing for the assessee that this question would not require any determination because the case of the respondent is covered by the decisions in Commissioner of C.Ex., Chandigarh vs. Saboo Alloys Pvt. Ltd., 2010 (249) E.L.T. 519 (H.P.) and Commissioner of C. Ex. Chandigarh vs. Tyre Tops, 2010 (250) E.L.T. 338 (H.P.), cannot be considered in detail herein. However, it will be open to the assessee to urge that such question does require consideration in which event, the learned Tribunal shall proceed to determine as to whether the points raised by the assesee require determination on the factual/legal matrix and whether the precedent cited before us by the respondent is attracted/applicable to the facts of the case. The appeal stands disposed of. (R.B. Misra) Judge August 25, 2011 (Dev Darshan Sud), ms Judge