9911796707
TMI Blog2010 (6) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... rred X X X X Extracts X X X X X X X X Extracts X X X X ..... time, this fact has not been considered by the Commissioner (Appeals). Moreover, if the department has not pointed out to the assessee for non-inclusion of the freight cost in the assessable value, department would have suffered the duty part also. So it is a clear cut case of suppression of facts with intent to evade duty. Hence penalty equal to duty is imposable on the assessee as rightly held in the case of Rajasthan Spinning and Weaving Mills by the Hon'ble Apex Court [2009 (238) E.L.T. 3 (S.C.)]. 3. On the other hand, the learned Advocate appearing on behalf of the assessee submitted that the show-cause notice issued for payment of interest and proposal for penalty was time barred and the Commissioner (Appeals) has not considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. - 2008 (232) E.L.T. 7 (S.C.) wherein the Supreme Court has held that the show-cause notice is the foundation of demand under Central Excise Act, 1944. Show-cause notice proceeding on lines contrary to allegations, appeals dismissed in absence of allegation made in show-cause notice. He further relied on Bharat Seats Ltd. v. Commissioner of Central Excise., New Delhi reported in 2009 (242) E.L.T. 308 (Tri.-Del.) wherein it was held that penalty is not imposable without element of law, there cannot be levy of penalty under Section 11AC of the Central Excise Act, 1944. 4. Heard both sides. 5. After careful consideration of the submission made by both the sides. I find that issue in this case is whether the show-cause notice issued on 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the law laid down by the Apex Court, it has to be held that limitation period as prescribed under Section 11A for recovery of non-levied short levied duty would also apply for recovery of interest on such duty under the provisions of Section 11AB. Since in this case admittedly interest demand pertains to the period from 16-9-2003 to 13-8-2004 and the show cause notice has been issued on 31-3-2006 and there is not allegation of misstatement or suppression of facts, etc. the show cause notice dated 31-3-2006 is time barred. In view of this, the Revenue's appeal is dismissed". In this case also I have find that the facts of this case are similar to the case of Krishna Engineering Works (supra) wherein the Tribunal has held since the int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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