9911796707
TMI Blog2012 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... f brevity, the relevant portion of Stay Order No. 877 dated 29.9.2011 is reproduced below:- However, at the bar today, learned counsel submits that the liability to pay duty for the period of dispute without benefit of Notification No. 6/2006-CE dated 1.3.2006 is conceded. It is further clarified that the appellant is presently aggrieved only by the invocation of the extended period of limitation as also the imposition of penalty. The matter, which is otherwise within the jurisdiction of Division Bench, is being taken up on the basis of learned Counsel s submissions. As indicated above, the appellant is seriously challenging the invocation of the proviso to Section 11A(1) of the Central Excise Act. A brief statement of the facts of this case is required to appreciate this challenge. During the period of dispute, the appellant was clearing Power Cord without payment of duty, to M/s XL Telecom Ltd. on the strength of Annexure-45 received from the said company. The exemption from payment of duty was claimed under Sl. No. 31 of the aforesaid notification wherein nil rate of duty was prescribed as effective rate of duty for parts, components and accessories of mobile handsets i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department. On this basis, the party objected to invocation of the extended period of limitation as also to the proposal for imposing penalty under Section 11AC of the Act. After hearing the party, the Assistant Commissioner passed the following order:- (i) I confirm the demand of Rs. 4,56,248/- (Rupees Four Lakhs Fifty Six Thousand Two Hundred and Forty Eight only) being the duty on impugned goods removed during the period from June, 2006 to October, 2006 in terms of the proviso to sub-section (1) of Section 11A of the Act; (ii) I appropriate the amount of Rs. 2,79,564/-, paid towards 10% of the value of the impugned goods while clearing them at nil rate of duty under Rule 6 of Cenvat Credit Rules, 2004, and adjust the same towards duly confirmed at (i) above; (iii) I confirm the demand of interest, at the applicable rates, on duty amount confirmed at (i) above under Section 11AB of the Act and appropriate the interest amount of Rs. 18,545/- paid by them on Rs. 2,79,564/- paid towards 10% of the value of the impugned goods while clearing them at nil rate of duty under Rule 6 of Cenvat Credit Rules, 2004, and adjust the same towards interest confirmed; (iv) I impose pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification. A copy of the notification has also been produced and the same, at Sl. No. 31, prescribes nil rate of duty for parts, components and accessories of mobile handsets including cellular phones , falling under CSH No. 8529 90 90. 6. The question before me is as to whether the suppression of fact alleged in the show-cause notice is true or not. The relevant part of the show-cause notice reads thus: It appears that the assessee has suppressed the information relating to classification of the power cords in the ER1 returns from June, 2006 to October, 2006 as they did not indicate its classification which is the vital aspect for the purpose of exemption under the relevant notification but removed the same (without payment of duty) with an intention to evade payment of duty. It also appears that the assessees have removed the excisable goods by contravening the provisions CE Act and the rules made thereunder with an intention to evade payment of duty inasmuch as the power cords manufactured and cleared by them are not actually eligible for clearance at nil rate of duty. It therefore appears that it is a fit case for invoking proviso to Section 11A of CE Act, 1944 to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 31 of Notification No. 6/2006-CE ibid but yet it was not disclosed in the returns filed by them. It is argued that this amounted to suppression of a material fact with intent to evade payment of duty on the goods and provided sufficient ground for the department to invoke the extended period of limitation. The same reasoning has been set up in defence of the penalty imposed on the appellant under Section 11AC. The learned Additional Commissioner (AR) has also claimed support from some of the decisions cited in the impugned order. 8. After giving careful consideration to the submissions, I am not impressed with the arguments of the learned Additional Commissioner (AR). It cannot be gainsaid that the classification of the goods was a vital fact to be disclosed by the assessee to the department in the context of claiming the benefit of exemption under Sl. No. 31 of Notification No. 6/2006-CE ibid. The Superintendent s letter dated 27.10.2006 clearly acknowledged the fact that the appellant cleared the power cords to M/s XL Telecom Ltd. at nil rate of duty on the basis of Annexure-45 issued by the said company. A copy of Annexure-45 had been supplied by the assessee to their ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
