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TMI Blog2018 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... order qua the duty to have been paid by them on their semi-finished fibre as being cleared by them to their group units. It is after the said request that the Department demanded details from the appellants since the year 2008-09 till the year 2012-13 - It is also very much apparent and admitted that prior the impugned show cause notice could have been issued, the appellants deposited the differential duty of 22,40,011/- for the period w.e.f. 2009-10 to 2012-13 (no clearances in the year 2008-09) alongwith the interest of 2,84,502/- for the period 2011-12 and 2012-13. It becomes absolutely clear that the facts came to the notice of the Department on the request of the appellant itself and that the appellant was paying duty as per its own c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of yarn falling under Chapter 54 & 55 of Schedule to Central Excise Tariff Act, 1985. They had cleared semi-finished fibre to group units on payment of duty for which they were liable in terms of Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. However, vide a letter dated 18th January, 2013 in terms of Rule 7 (1) of Central Excise Rules, 2002, the appellant had requested the Assistant Commissioner of Central Excise for finalization of provisional assessment of goods cleared during the financial year 2011-12 without having any provisional assessment order in the first place. In response thereof the details about clearances made during the period 2012-13 and vide a subsequent demand the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact on the part of the appellant. While reiterating the case law already relied upon by the appellant for the purpose, it is submitted that the Commissioner (Appeals) has committed an error still confirming the penalty though to a reduced amount. The order to that extent is prayed to be set aside. Appeal is accordingly, prayed to be allowed. 4. While rebutting these arguments, it is submitted by ld. D.R. that no provisional assessment was ever got made by the appellant at the time of initial payment of the duty. The letter dated 18th January, 2013 was issued just to cover up the mistake committed by them. It is impressed upon that the short levy was intentional. To that extent the order under challenge is not justified. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not on the assessee/noticee but the burden thereof is on the Department who makes the allegation. The Hon'ble Apex Court in Pushpam Pharmaceuticals Co. vs. Collector of Central Excise, Bombay - 1995 (78) ELT 401 (S.C.) has held that words and phrases, "suppression of facts" proviso to Section 11A (1) of Central Excise Act, 1944 has to be interpreted strictly because of its use with the strong words like fraud, collusion or wilful default. Mere omission to disclose the correct information does not amount to suppression of facts, unless it was deliberate to escape from payment of duty. There is nothing produced by Department which may prove any act of the appellant amounting to the suppression of facts. 6. Also the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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