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TMI Blog2018 (4) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order in original, to our mind the respondent was not liable to pay even the basic duty - appeal dismissed - decided against Revenue. - E/2926/06 - A/85694/2018 - Dated:- 22-3-2018 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) Appearance: Shri Hitesh Shah, Commissioner (A.R.) for Appellant Shri M.H. Patil, Advocate for Respondent Per: Raju: This appeal has been filed by the Revenue against order of Commissioner dropping proceeding initiated against the respondent for recovery of interest and imposition of penalties. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest payable by them. Learned AR pointed out that the Commissioner has dropped the demand essentially on the ground that the respondent were entitled to avail the CENVAT credit of the duty paid on the LPG captively consumed by them. Consequential there was no loss to the Department when the respondent chose not to pay duty on cenvatable LPG captive consumption. Learned Commissioner also wrongly held that this was only a procedural lapse and subsequently benefit cannot be denied on such account. Learned AR pointed out that Section 11A(2B) provides that: i) Where any duty of excise has been short paid; ii) the person, chargeable with the duty, may pay the amount of duty before services of notice; iii) and inform the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od Section 11AB also mandate demand of interest only in cases of duty short paid and or erroneously refunded when it was on account of fraud, collusion, wilful mis-statement, suppression of fact, etc. and there was a determination of duty under Section 2 of Section 11A. He argued that the Revenue has not challenged bonafide of the respondent as confirmed by the Commissioner in his order. He further argued that when the credit is available to the respondent themselves they cannot be charged for fraud, collusion, wilful mis-statement, suppression of fact, etc. Learned Counsel further argued that that the law of limitation is applicable for interest and imposition of penalty. He relied on the decision of Hon'ble High Court of Delhi in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order-in-original, to our mind the respondent was not liable to pay even the basic duty. But for the respondent voluntarily making payment of such duty short-paid, it was not open for the Department to recover the same under sub-section (1) of Section 11A of the Act. In absence of any such voluntary payment, recovery of the unpaid duty would not have been possible. In that view of the matter, we do not find the case would fall under sub-section (2B) of Section 11A of the Act. Sub-section (2B) of Section 11A of the Act applies in a case where there is voluntary payment of unpaid duty before issuance of show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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