9911796707
TMI Blog2019 (4) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... who requested the Department to recover the duties directly from their bank account as recorded in the SCN itself; thereafter, the Department recovered an amount of ₹ 17,11,244/- from the bank account of the appellant. It is a case of default in the payment of duty as per sub-Rule 4 of Rule 8, the Department has power to recover the same in the manner as they are applicable for recovery of any duty or other sums payable to the Central Government. Imposition of penalty - Held that:- Circular of the Department dated 15.12.2003 also explains the position of law with regard to default in the payment of Excise Duty. Further, imposing the penalty by invoking Section 11AC of the Central Excise Act is not applicable in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanding the said amount along with interest and also proposing to appropriate the duty already paid by them. Subsequently, another SCN dated 10.04.2017 was issued by Assistant Commissioner of Central Excise demanding duty of ₹ 3,28,578/- on the excisable goods cleared during February 2016 to February 2017. After following the due process, both the SCNs were adjudicated by Assistant Commissioner vide common Order-in-Original dated 16.06.2017 wherein duty of ₹ 17,11,244/- for the period from September 2014 to October 2015 was confirmed along with interest and the entire duty already recovered from the bank at the instance of the appellant was ordered to be appropriated towards the demand. In addition to this penalty of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11 of the Act shall be applicable for recovery of duty as assessed under Rule 6 and the interest under sub-Rule 3 in the same manner as they are applicable for recovery of any duty or other sums payable to the Central Government . He also submitted that on reading various provisions of the Act and the Rules, the duty payable shall be recovered in the manner as provided under Section 11 of the Central Excise Act treating the duty not paid as recoverable arrears which means that the Department was required to take recourse to recover the duty as provided under Section 11 of the Central Excise Act only and the provisions of Section 11A could not have been invoked at all. He also submitted that to recover duty defaulted under Rule 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletion of one month paid from the due date, the amount of duty outstanding and the interest payable thereon should be treated as recoverable arrears of revenue and all permissible action under the law including the action under Section 11 of the Central Excise Act, 1944 and under Section 142 of the Customs Act, 1962 should be taken. Specific provision under Rule 8(4) is provided for application of Section 11 of the Central Excise Act, 1944 for recovery of the duty assessed under Rule 6 and interest payable thereon. 4. Such amounts are required to be accounted for and reported as realizable arrears of revenue in the relevant statement. As action under Section 11 can be taken without issuance of Show Cause Notice, prompt action s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such returns could not have been filed without paying the duty. 5. On the other hand, the Learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the present case pertains to the default of payment of duty by the appellant for two periods i.e from September 2014 to October 2015 and for the period from February 2016 to February 2017 and the total duty which has been demanded from the appellant is ₹ 20,39,822/- for both the periods with equal penalty under Section 11AC of the Central Excise Act. Further, I find that non-payment of duty had arisen on account of freezing of the bank account owing to the family dispute and it is only the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of their letter dated 05.03.2012 which is annexed with the SCN. Further, it is also a fact that the appellant s bank account was freezed owing to family dispute and it is the appellant who requested the Department to recover the dues directly from the bank account. As a result of which, the Department could recover ₹ 17,11,244/- from the bank of account of the appellant. The appellant also relied upon the various decisions to show that the extended period of five years cannot be invoked unless some positive act or omission is proved and that too with intent to evade payment of duty. Further, even the Circular of the Board does not approve the imposition of penalty under Section 11AC by invoking the extended period in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
