1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi CENTRAL EXCISE APPEAL NO. 29 OF 2005. The Commissioner of Central Excise, Belapur. ..Appellant. v/s. M/s. National Organics Chemical Industries Ltd. ..Respondent. .... Mr. J. B. Mishra, for Appellant. Mr. Prakash Shah, i/b. PDS Legal, for Respondent. .... CORAM : V.C. DAGA & S.J. KATHAWALLA, JJ. DATE : 28TH JUNE 2010. P.C. Perused Appeal. Heard Learned Counsel for the Appellant-Revenue and Learned Counsel appearing for the Respondent. 2. Appeal is directed against the order dated 9th July 2004 whereby and whereunder the Tribunal has observed that the penalty is not imposable when the issue involved is of interpretation of statutory provisions. 3. We were taken through the order of the Tribunal. The Tribunal has observed as under :- “ 10. The learned Advocate for the appellant lastly contends that there was no malafide intention on the part of the assessee in claiming Modvat Credit as it has been done after informing the Central Excise authorities. There is no violation of the provision of law except the mis-interpretation of the statutory provision. Therefore, he pleads that penalty is not 2 justified. He rely upon the following decisions. 2003 (158) ELT 355 (Tri-Delhi) Kathuria Portfolios vs. CCE, Delhi 2004 (163) ELT 177 (Tri-Delhi) Manglam Cement Ltd. vs. CCE, Jaipur. It is observed that the penalty is not imposable when the issue involved is of interpretation of statutory provisions. Having considered the same the penalty imposed on the assessee is set aside. 11. The appeal is disposed off accordingly. 12. Credit of Modvat claim is not allowed. Penalty is set aside.” 4. Having seen aforesaid findings recorded by the Tribunal, no fault can be found with the view taken. The Apex Court in the case of Union of India v/s. Rajasthan Spinning & Weaving Mills, 2009 (238) ELT 3 (SC) has specifically ruled that the penalty provision of section 11AC would come into play only after an order is passed under section 11A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting means as indicated in section 11AC. The same observations hold good for imposing penalty under Rule 13 of the Cenvat Credit Rules, 2002. 5. In the above view, no case is made out to interfere with the impugned order of the Tribunal. Appeal is therefore, dismissed for want of merit, with no order as to costs. [ S.J. KATHAWALLA, J. ] [V.C. DAGA, J.]