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TMI Blog2011 (5) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... al is arising against the order of the Commissioner (Appeals) in which the order of the Assistant Commissioner dated 28/03/2008 and the Superintendent's panchanama dated 29/03/2008 for attachment of goods were set aside and the same is filed by the Revenue. 2. The facts of the case are as follows:- "Proceedings were initiated against the appellants by the Commissioner of Central Excise, Goa by issuance of show cause notice dated 3/5/2007 and passing of order-in-original dated 10.09.2007 wherein the Commissioner has confirmed the demand of Rs.5.36 crores for the period April, 2002 to March, 2007 on the grounds that the Base Paints cleared by the appellants from their Goa factory are not sold to the ultimate consumer and hence cannot be valued under Section 4A i.e. MRP based and have to be valued under Section 4 based on the sale price charged by the appellants from their retail dealers. The appellants preferred an appeal and stay application before CESTAT against the Commissioner's order and CESTAT vide its order dated 8.2.2008 issued on 11.2.2008 has directed the appellants to deposit Rs.2.5 crores as pre-deposit under Section 35F as a condition for hearing the appeal. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here for better appreciation. "Section 11 - Recovery of sums due to Government - In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made there under, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. (Provided that where the person Hereinafter referred to as predece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears, as the case may be. (1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made there under with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under Section 11AB and penalty equal to twenty five per cent of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice) (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (Provided that if such person has paid the duty in full together with, interest and penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall apply in a case where the duty was not levied or was not paid or was short-levied or was short paid or was erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty. Explanation 2 - For the removal of doubts, it is hereby declared that the interest under Section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise officer, but for this sub-section. (2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. (3) For the purposes of this section, - (i) "Refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "Relevant date" means, - (a) In the case of excisable goods on which duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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