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TMI Blog2016 (12) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... that on payment of duty alongwith interest, no show cause notice shall be issued and for all practical purpose the matter has to be closed. The explanation appended to Section 11A (2B) ibid will not have any application to the facts and circumstances of the present case since the clandestine motive of the appellant in defrauding the Government revenue has not been substantiated by the Department with the help of any tangible evidence. Appeal allowed - decided in favor of appellant-assessee. - Excise Appeal No.E/51125/2014-EX [SM] - FINAL ORDER No.55436/2016 - Dated:- 5-8-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) Present for the Appellant : Shri Ankit Totuka, Advocate Present for the Respondent: Shri R.K. Mishra, A.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon has also stated that due to mistake, no Central Excise Invoices were issued by the appellant. The ld. Advocate further submits that since the entire amount of duty alongwith interest was paid upon detection of mistake and before issuance of show cause notice, the benefit conferred in sub-section (2B) of Section 11A of the Central Excise Act, 1944 should be available to the appellant. 4. Shri R.K. Mishra, the ld. D.R. on the other hand, reiterates the findings recorded in the impugned order and relied on the judgment of Hon ble Supreme Court in the case of Commissioner of Central Excise, Mumbai vs. Kalvert Foods India Pvt. Ltd. reported in 2011 (270) ELT 643 (SC) and the judgment of Hon ble Delhi High Court in the case of Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be closed. The explanation appended to Section 11A (2B) ibid will not have any application to the facts and circumstances of the present case since the clandestine motive of the appellant in defrauding the Government revenue has not been substantiated by the Department with the help of any tangible evidence. The above judgments cited by the ld. DR have no application to the facts of the present case inasmuch as in those cases clandestine removal of goods were proved by the Department and since the duty was paid thereafter, it was held that penalty is also required to be paid under Section 11AC ibid. 7. In view of above, I do not find any merits in the impugned order and allow the appeal in favour of the appellant. (Dictated and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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