2011 (7) TMI 912 - AT - Central Excise

Evasion of duty - Suppression of facts - Demand - revenue neutral - Both Proviso to sub Section (1) of Section 11A of Central Excise Act, 1944 and Section 11AC ibid use the same expressions like fraud, collusion, willful mis-statement, suppression of facts, or contravention of provisions with intent to evade payment of duty and once the conditions that extend normal period of limitation for demand to five years then it would attract imposition of penalty under Section 11AC ibid - Appeal is dismissed

Summary

Issues:
- Appeal against order-in-appeal upholding lower adjudicating authority's decision
- Allegation of suppression of facts to evade payment of duty
- Imposition of duty demand, interest, and penalty under Section 11AC
- Argument of revenue-neutral situation by the appellant
- Reliance on Tribunal's decision and Supreme Court's judgment
- Interpretation of Section 11AC and its applicability in the case

Analysis:
The appellant filed an appeal against the order-in-appeal upholding the lower adjudicating authority's decision regarding the imposition of duty demand, interest, and penalty under Section 11AC. The case revolved around the allegation that the appellant suppressed facts to evade payment of duty, as they did not revise their prices from 1994-95 onwards, leading to a demand of Rs.3,51,794/- along with interest and a penalty of Rs.43,683/-. The appellant argued that the situation was revenue-neutral as any duty paid at their Nashik Unit was credited at Bangalore, and they would not gain anything by suppressing the value. They relied on a Tribunal's decision in a similar case to support their contention.

The Department, however, contended that the demand was based on suppression of facts with the intent to evade duty, citing the applicability of Section 11AC as per the Supreme Court's judgment in a specific case. The Tribunal analyzed the submissions from both sides and examined the records. The Tribunal noted that the penalty under Section 11AC was imposed for the period when the provision was in effect, emphasizing that the demand was raised due to suppression of facts with the intent to evade duty. The Tribunal highlighted that the conditions triggering the extended period for demand also attracted the imposition of penalty under Section 11AC, as it encompassed elements like fraud, collusion, willful misstatement, and suppression of facts.

The Tribunal differentiated the appellant's reliance on a Tribunal decision in a separate case, emphasizing that the demand in that case was not sustainable, making it irrelevant to the present situation. Ultimately, the Tribunal found no fault with the lower appellate authority's decision, upholding the order-in-appeal and dismissing the appellant's appeal. The judgment underscored the applicability of Section 11AC in cases involving suppression of facts with the intent to evade duty, reinforcing the importance of adhering to statutory provisions to prevent duty evasion.