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TMI Blog2018 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... (2B) of Section 11A of the Act had given an option to the assessee to pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice, and to inform the Central Excise Officer in writing, who, shall not serve any notice in respect of the duty so paid. In the present case, the duty is to be paid on 20.09.2006 i.e. the date on which the shortage has been detected by the Central Excise Officers. Therefore, the findings of the adjudicating authority that the information of payment of duty was given to the department on 09.02.2007 are contrary to the evidence on record. It is on record that the Central Excise officers deposited the post dated cheques from 26.10.2006 onwards in the bank for encashment vide TR-6 challans. Hence, the finding of the adjudicating authority is not sustainable. There was no requirement to issue SCN as per provisions of Section 11A (2B) as the appellant had already paid the duty as ascertained by the officers before issuance of SCN - the impugned order is modified to the extent that the demand of 11 lakhs as deposited by the appellant before issuance of Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue the Show Cause Notice. The other contention is that the Central Excise Officers ascertained the shortage of stock during stock verification on 20.09.2006 and the Show Cause Notice was issued on 05.11.2007, i.e. beyond the normal period of limitation. Hence, the demand of duty is barred by limitation. 3. The Ld. Counsel fairly submitted that even though the demand is barred by limitation, they are not disputing the payment of 11 lakhs as deposited by them. 4. The Ld. A.R. for the Revenue reiterated the findings of the lower authority. He submitted that the appellant admitted to the shortage of goods in his statement dated 20.09.2006 and statement dated 05.10.2007. It is further submitted that the Show Cause Notice was issued on 05.11.2007 after recording the statement dated 05.10.2007. Thus, the demand of duty is within the stipulated period as provided under Section 11A of the Act. It is further submitted that the entire amount of duty was not paid in terms of Section 11A (2B) of the Act. It is also submitted that the quantification of the duty liability was not done at the time of stock verification, which was admitted by the appellant in his statement dated 05.10.2007. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation 1.- Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty. Explanation 2.- for the removal of doubts, it is hereby declared that the interest under Section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section." 7. On close reading of Section 11A (1), it is seen that the Central Excise Officers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques cannot be considered as the payment of duty. From the records of the Range it is ascertained that excise duty payment was made against these cheque amount only on 05.02.2007. the information of the payment of duty was intimated to the department on submissions of periodical Returns on 09.02.2007. So, the notice was issued well within one year from the date of receipt of the information of payment. In view of the discussions above, I hold that the noticees' contention and arguments that the notice was issued wholly without and/or in excess of jurisdiction and was barred by limitation have no legal backing, as, Section 11A (2B) or the provisions thereof are not applicable in the case as also the notice was issued well within one year of the date of payment of duty / from the date of receipt of information of such payment." 9. Apparently, I find that the entire demand of duty was raised on the basis of shortage of goods as detected during the stock verification conducted on 20.09.2006. In terms of Section 11A (3) (ii) (a) (C) of the Central Excise Act as it stood during the relevant period, the term "relevant date" means, - "in the case of excisable goods on which duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the show cause notice it is noted that charge to evade Central Excise duty, was based only on an allegation that appellant being in the organized sector should have known the law and should have read the notification correctly before availing the benefit and it cannot be said that they were unaware of the law. Only on this allegation it has been stated that appellant has suppressed the fact from the department with intention to evade Central Excise duty. I do not find any merits in the arguments raised by the learned Authorised Representative and as recorded by both the lower authorities. Provisions of Section 11A(2B), as it stood during the relevant period, specifically states for non-issuance of show cause notice on discharging duty liability and the interest thereof, on ascertainment of duty liability by an assessee on their own or on being pointed out by the Central Excise officer. As already recorded herein above, it is the claim of appellant that due to misinterpretation of the clause of the notification the duty was short paid during the relevant period, which made good by the appellant before issuance of show cause notice. If this be so, it cannot be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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