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TMI Blog2011 (2) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty under Section 11AC was itself bad in law being in contravention of Section 11A(2B) of the Central Excise Act, 1944 ? 2. The respondent/assessee during the period from 1-4-2003 to 30-4-2003 manufactured and cleared refined oil valued Rs. 99,99,683/- without payment of duty claiming exemption under Notification No. 8/2003-C.E., dated 1-3-2003. The exemption under the said notification is subject to the condition that the aggregate value of clearances of all excisable goods for home exemption (sic) [consumption] do not exceed Rs. 300/- lakhs in the preceding year. Admittedly, the value of excisable goods manufactured and cleared by the assessee during the year 2002-03 was Rs. 5507/- lakhs. Since the value of clearances of all excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder [2009 (243) E.L.T. 346 (Tribunal)], the Tribunal set aside the penalty on the ground that the show-cause notice dated 26-12-2005 was issued in violation of Section 11A(2B) of the Central Excise Act. According to the Tribunal, once duty and interest is paid before issuance of the show cause notice under Section 11A(1) of the Act, then, under Section 11A(2B) no show-cause notice can be issued for either demanding duty or penalty. 6. It would be advantageous to reproduce the relevant observations of the Tribunal in paragraph 5, which read thus : "The show cause notice on this case, which was issued long after the payment of duty by the appellant, proposed, inter alia, to appropriate the payment made by the appellant towards duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the rules made thereunder with intent to evade payment of duty. In other words, Section 11A(2B) would not apply where there is fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or the Rules made therein with intent to evade payment of duty. Thus, the bar contained in Section 11A(2B) would not apply where it is found that the assessee has practiced fraud ......with intent to evade payment of duty. 8. In the present cause, fraud/suppression is alleged by the Revenue right from inception i.e. the stage of issuance of the show cause notice. In these circumstances, Explanation 1 to Section 11A(2B) would be squarely attracted in the present case. Therefore, irr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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