FA 481/08 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.481/2008 Commissioner of Central Excise & Customs, Town Centre, N-5, CIDCO, Aurangabad. ...Appellant.. Versus M/s Sanket Food Products Pvt.Ltd., A-9/26, Addl. M.I.D.C. Area, Jalna. ...Respondent... ..... Shri Alok Sharma, Assistant Solicitor General of India for appellant. ..... CORAM: D.B. BHOSALE & R.M. BORDE, JJ. DATE: 02.02.2011 PER COURT : 1] Heard learned counsel for the appellant. FA 481/08 - 2 - 2] The only question raised by the Revenue before the CESTAT was whether the Commissioner was justified in deleting the penalty levied u/s 11-AC of the Central Excise Act, 1944. In the present appeal also, the very same question is raised and addressed by learned counsel for the appellant. 3] We have perused the orders passed by the Tribunal and the Commissioner. It is not in dispute that the inputs in question viz. lamination film could not be utilised in the manufacture of final product in view of the ban imposed by the State Government vide notification effective from 1.8.2002 on the manufacture of final products. It is also not in dispute that the inputs have become obsolete and the credit of duty paid on inputs taken by the assessee had already been reversed. The show cause notice was issued on 10.8.2004 and the credit of duty paid on inputs taken by the assessee was reversed on 8.3.2003. Merely because the credit of duty was reversed after it was brought to the notice of the assessee, can not be a ground to attribute criminal intention on the part of the assessee having regard to the passage of time from the date of imposing ban and the date on which the credit of duty taken by the assessee was reversed. In these circumstances, the finding of fact recorded by the Tribunal that there was no mala fide intention on the part of the assessee can not be faulted. Learned counsel for the appellant could not and did not submit that the findings recorded by the Tribunal are perverse. The Apex Court in the case of Commissioner of Central Excise V/s Pepsi Foods Ltd. (2010 (260) ELT 481) (SC), has held that Section 11-AC applies FA 481/08 - 3 - only if there is criminal intent or mens rea. The judgment relied by the appellant in Commissioner of Central Excise & Customs V/s Ram Aluminium P. Ltd. ( 2009-EQ (BOM)-0-895) will not apply to the facts of the present case and more particularly in view of the finding of fact recorded by the Tribunal that there was no mala fide intention on the part of the assessee. Hence, we see no merit in the appeal and the same is dismissed. (R.M. BORDE, J.) (D.B. BHOSALE, J.) ndk/2211