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TMI Blog2017 (5) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case appellant have sold the goods on higher MRP as compared to the MRP considered at the time of the clearance of the goods therefore this was very much known to the respondent and despite knowing this fact they have not discharged the differential duty, hence there is suppression of fact on their part. Therefore adjudicating authority have rightly imposed penalty under Section 11AC and Ld. Commissioner(Appeals) erred in setting aside the same. 3. On the other hand, Shri. K.A. Photographer, Ld. Associate V.P. & respondent submits that goods were cleared on payment of duty taking MRP prevailing at the time of clearance of the goods as per the trend of the market. In case of some goods price gets changed from time to time therefore s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner(Appeals) while setting aside the penalty under Section 11AC given following findings: 5. Another important contention raised by the appellant is about the intention on the part of the appellant. The appellant claims that they do not have any intention to evade central excise duty in as much as the goods were manufactured openly and the same were cleared openly by paying duty on MRP declared at the time of removal from the factory to the depots / branches. It was only on the stock lying un-sold, the price revision has taken place a matter of common knowledge that in the business the price revision takes place from time to time. The price revision takes place depending on various factors such as ruling of demand and supply, compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the differential duty along with interest paid by the appellant should be treated as settled under section 11A (2B) of Central Excise Act, 1944. Under the above circumstances, absolutely it is not possible to figure the appellant with allegation of suppression of facts with malafide intention to evade central excise duty. For invoking section 11A, there can be intention to evade central excuse duty. Also there should be a positive act with deliberate defiance of law or the appellant acted contumaciously. From the record, it is proved that the differential duty on account of price revision in the system has escaped the notice of the appellant and the department also has failed to notice the same during the conduct of audit. Therefore. I hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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