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TMI Blog2018 (11) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... elves for confirming the demand, it is held that the ingredients necessary for imposing penalty under section 11AC is not attracted in the present case. There is nothing to establish that the appellants have suppressed facts with intent to evade payment of duty. The scenario that short-payment of duty had occurred was only because the appellants were arriving the assessable value on the basis of the cars cleared to their Delhi dealers. Penalty set aside - appeal allowed in part. - Appeal No. E/41903/2018 - Final Order No. 42750/2018 - Dated:- 1-11-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri Rajaram, Consultant for the Appellant Shri L. Nandakumar, AC (AR) for the Respondent ORDER Brief facts are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of the clearances made to the dealers in Delhi on the belief that this is the highest price. In fact, on intimation by the department, the appellant itself had undertaken the exercise of verifying the difference in the price for clearances made to the different dealers. On such verification, it was found that there was an excess payment of ₹ 10,06,683/- and shortage of ₹ 20,94,086/-. The appellant in their letter dated 29.3.2016 issued to the Assistant Director of DGCEI had given the details of such difference of value adopted for discharging the central excise duty. In the order in original, the adjudicating authority has noted the reply filed by the appellant with regard to the excess payment also. It is thus argued by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emerged:- Scenario 1: Where the assessable value is higher than the RIPL Net Dealer Price i.e. Basic Price after excluding excise duty and sales tax and net discounts (i.e.. Total discount passed on to the dealer after excluding excise component included in such discounts). This results in higher / excess excise duty payment by NMIPL which is not actually due to Government. Scenario 2: Where assessable value adopted by NMIPL is lesser than RIPL Net Dealer Price. This results in lower excise duty payment by NMIPL. On our analysis, the major reason for the above variation (i.e. both scenarios 1 and 2) is on account of the following:- RIPL has maintained Delhi Dealer Price as the basis for calculating excise duty as the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty for the previous period, they have filed refund claim and this is known to the department also. Taking into consideration the fact that the appellants have discharged excess duty during the impugned period and also the fact that the department has quantified the figure on the basis of the exercise undertaken by the appellant themselves for confirming the demand, I am of the view that the ingredients necessary for imposing penalty under section 11AC is not attracted in the present case. There is nothing to establish that the appellants have suppressed facts with intent to evade payment of duty. The scenario that short-payment of duty had occurred was only because the appellants were arriving the assessable value on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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