9911796707
TMI Blog2012 (12) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-6-2001, much before the issue of show cause notice on 21-9-2001, can not be attributed to “fraud, wilfil mis-statement, mis-declaration, suppression of facts or contravention of any provisions of Central Excise Act, 1944 or of the rules made thereunder with intent to evade the payment of duty – duty upheld - imposition of penalty on the appellant under Section 11AC is not sustainable. Interest on duty under Section 11AB – Held that:- As per the provisions of Section 11AB, interest under this Section was chargeable only in those cases where short-payment, non-payment or erroneous refund of duty were due to fraud, wilful mis-statement, mis-declaration, suppression of facts, etc. - fraud, wilful mis-statement, mis-declaration, suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sugar was to be reimbursed by the Government to the Sugar Mills. But before this communication, the appellant had cleared 15509 quintals of free sale sugar as levy sugar on payment of duty applicable to levy sugar. The appellant received differential duty of Rs. 5,11,797/- in August, 2001. They however had paid the differential duty of Rs. 5,11,797/- to the Department on 7-6-2001. The Department subsequently issued a show cause notice dated 21-9-2001 for confirmation of the duty demand along with interest under Section 11AB and imposition of penalty on the appellant under Section 11AC. The show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 26-10-2001 by which the duty demand as made in the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment, at the rate of duty applicable to levy sugar, this fact had been intimated to the Department and that in these circumstances, the impugned order upholding the interest under Section 11AB and penalty under Section 11AC is not correct. 4. Shri Sanjay Jain, the learned Departmental Representative defended the impugned order by reiterating the findings of the CCE (Appeals) and cited the judgement of Hon ble Karnataka High Court in the case of CCE, Bangalore-I v. Geneva Fine Punch Enclosures Ltd. reported in 2011 (267) E.L.T. 481 (Kar.), wherein it was held that even voluntary payment of duty along with interest when pointed out by the authorities after investigation would not save the assessee from the penalty provisions of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he direction of Sugar Directorate to the Sugar Mills that the sugar cleared as levy sugar was to be treated as free sale sugar and though in November, 1998 the Government clarified that differential duty would be reimbursed to the Sugar Mills which would indicate that the Government intended to treat these sugar sales as free sale sugar, the appellant received the differential duty only in August, 2001 and before that, i.e. in June, 2001, they had paid the differential duty. 6.2 Keeping in view the above facts and the conduct of the appellant, we are of the view that the short-payment of duty in this case, which was made goods by the appellant on their own on 7-6-2001, much before the issue of show cause notice on 21-9-2001, can not be at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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