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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 ..... of Section 11A is erroneous and cannot be sustained - The Tribunal ought to have either confirmed the findings recorded by the Commissioner on the point of suppression/fraud and intention to evade the duty or examined the said question independently if the findings recorded by the Commissioner (Appeals), in the opinion of the Tribunal, were perverse - Accordingly, the decision of the Tribunal to the extent it holds that the show-cause notice was invalid in view of Section 11A(2B) of the Act cannot be sustained - Since the CESTAT has not given any finding , whether there was fraudulent intention to evade duty - Remand the matter. - 520 of 2010 - - - Dated:- 9-2-2011 - D.B. Bhosale and R.M. Borde, JJ. REPRESENTED BY : Shri Alok Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the assessee was justified in availing the benefit of the exemption for the period from 1-4-2003 to 30-4-2003 is the question. During the course of investigation, statement of the Plant Manager was recorded on 23-9-2003 and 12-1-2004 wherein he admitted that the exemption was wrongly availed. Accordingly, on 21-1-2004 the assessee paid the duty with interest thereon under Section 11AB of the Excise Act. 3. Thereafter, by the show-cause notice dated 26-12-2005, the assessee was called upon to show cause as to why penalty should not be levied under Section 11AC of the Central Excise Act, 1944 (for short the Act ) on the ground that the assessee had practiced fraud with intent to evade payment of duty. On adjudication, the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in issuing the show cause notice in respect of the duty, short paid. This situation certainly was not obtaining in this case. Therefore, the requirement under Section 11AC on an amount of duty having to be determined under sub-section (2) of Section 11A was not satisfied in this case. Where this essential requirement was not satisfied, allegation of suppression, contravention of rules with intent to evade payment of duty etc. would turn out to be irrelevant. Thus, in the instant case. Section 11AC of the Central Excise Act was erroneously invoked against the appellant. In this scenario, the penalty on the appellant has to be set aside. (emphasis supplied) 7. The Tribunal, in our opinion, has committed grave error of law in making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26-12-2005 would be valid. The Tribunal, therefore, ought to have examined whether the Explanation 1 to sub-section (2B) of Section 11A is applicable in the present case. The finding that the proposal made in the show cause notice was in breach of injunction contained in sub-section (2B) of Section 11A is erroneous and cannot be sustained. The Tribunal ought to have either confirmed the findings recorded by the Commissioner on the point of suppression/fraud and intention to evade the duty or examined the said question independently if the findings recorded by the Commissioner (Appeals), in the opinion of the Tribunal, were perverse. Accordingly, the decision of the Tribunal to the extent it holds that the show-cause notice was invalid in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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