9911796707
TMI Blog2019 (4) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... ling under Chapter heading Nos. 39 and 48. It was noticed by the Department that the appellant had not paid duty totaling of Rs. 17,11,244/- in respect of excisable goods cleared by them during the period from September 2014 to October 2015 and a SCN dated 21.06.2016 was issued by the Additional Commissioner of Central Excise, Bangalore 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 Rs. 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not made under the cover of Central Excise invoices which is apparent from SCN itself. In the instant case, there is no allegation that there is an evasion of duty or clandestine clearance of goods. Learned Counsel further submitted that as per sub-Rule 4 of Rule 8 of Central Excise Rules, "provisions 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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not paid, it shall be deemed that the goods in question have been cleared without payment of duty and where such duty and interest are not paid within a period of one month within due date, the consequences and the penalties as provided in the said rules shall follow. 3. Therefore, after the completion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty is established. He also submitted that non-filing of excise returns for the impugned period cannot be taken as intentional contravention since 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 demande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed the default in the payment of duty, he could have filed the Return without payment of duty whereas there is no provision under the Excise Act to file Return without payment of duty. It is also a fact that the Department has proceeded against the appellant 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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