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TMI Blog2013 (6) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... ntional evasion. - Decided against the assessee. - Tax Appeal No. 1583 of 2011 - - - Dated:- 3-9-2012 - V M Sahai And N V Anjaria, JJ. For the Appellant : Mr Gaurang H Bhatt For the Respondent : Mr A P Nainawati JUDGEMENT:- Per : N V Anjaria, J : The present appeal under section 35G of the Central Excise Act, 1944 was preferred by the Department against the order dated 15.06.2011 of the Customs, Excise and Service Tax Tribunal, West Zonal Branch, Ahmedabad in Appeal No.E-3485 of 2004. 1.1 The appeal was admitted on the following two questions framed as substantial questions of law. 1. Whether the Tribunal below committed substantial error of law by overlooking the fact that by subsequently bringing the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id show cause notice culminated into order dated 26.12.2003 by the adjudicating authority. Therein the excise duty amounting to Rs.2,23,990/- was confirmed over and above what was already paid by the assessee. Penalty of Rs.13,78,720/- being the equivalent amount of the total duty assessed was imposed under section 11AC and the interest was also charged under section 11AB of the Act. 3.2 It appears that the assessee's previous appeal was allowed by the Tribunal by order dated 01.10.2008 on the point of revenue neutrality and also on the point of limitation. In the appeal preferred by the Department, this court by order dated 23.03.2011 remanded the matter for fresh decision. It is in that background that the Tribunal has rendered the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, where such clearances were noticed by the Revenue on their visit of the appellant's factory on 22.3.2000. IN fact, it can be reasonably concluded that such visit was the result of disclosure made by the appellant vide their above letter dated 16.3.2000. 5.1 Thus, the assessee voluntarily stated that certain moulds were cleared and duty was not paid thereon. The letter was of 16.03.2000 i.e. prior to the date when the Central Excise officers visited the factory and noticed the clearances of casting moulds without duty. Therefore, the conduct of the assessee was honest and cannot be ascribed with an intention to evade the duty. The Tribunal rightly held that the invocation of extended period of limitation was not approvable. 6. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that since the goods were cleared to sister concern, whatever duty was payable by the assessee was available as credit to their own sister concern, the entire exercise was Revenue neutral. 7. As a result of above discussion, it is held that the Tribunal committed a substantial error in interpreting the provisions of section 11A of the Central Excise Act, 1944. As noted above, the assessee had on its own brought to the knowledge of the Department the fact about clearances of the goods to its sister unit without duty before the date of visit of the officers who noticed such clandestine clearances. The assessee's conduct was candid and therefore bona fide. There was no element of intentional evasion. 8. Accordingly, question No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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