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TMI Blog2021 (12) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act. When the material on record is perused it becomes clear that in the reply to the show cause notice itself the appellant had stated that in view of exemption Notification No.74/1993 which was applicable to it till 31.3.1996, the appellant was not aware of the procedure as regards charging and paying excise duty. It became a statutory Corporation and there was no intention to evade the payment of central excise duty in any manner whatsoever. While admitting that it was liable to pay central excise duty it was stated that the penalty or interest may not be imposed upon the appellant. The Tribunal while considering the aforesaid material has stated that the explanation furnished by the appellant was not sufficient and the plea of bona fide belief was not accepted. It is thus found that satisfaction recorded initially by the Commissioner and then by the Tribunal as regards the intention of appellant to evade payment of central excise duty is without any supporting material on record - The substantial question of law as framed is answered by holding that the Tribunal was not justified in law and in facts in holding that the demand under the show cause notice was not bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be passed by the Commissioner in which the show cause notice was confirmed and the amounts mentioned in the said notice were held to be recoverable from the appellant. 4. The appellant, being aggrieved by the aforesaid adjudication, filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short, the Tribunal ). After hearing both sides the Tribunal on 31.1.2011 partly allowed that appeal by maintaining the demand of duty under Section 11A(1) as well as penalty imposed under Section 11AC of the said Act. The penalty imposed under Rule 173Q of the Central Excise Rules, 1944 (for short, the said Rules ) was, however, set aside. Being aggrieved by the aforesaid adjudication the appellant has preferred this appeal. 5. Smt. Sharda Wandile, learned counsel for the appellant submitted that the proviso to Section 11A(1) of the said Act had been wrongly invoked by the revenue for demanding central excise duty for the period beyond one year. The proviso under Section 11A(1) of the said Act could be invoked only if there was any wilful mis-statement or suppression of facts with an intention to evade payment of duty. There was no material on record either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S.N. Bhattad, learned counsel for the respondent on the other hand submitted that the Tribunal was justified in relying upon the proviso to Section 11A(1) of the said Act. According to him, the Office of the Directorate General of Central Excise Intelligence had first recorded the statements of the Executive Engineer of the appellant and only after being satisfied that the central excise duty had not been paid despite liability in that regard, the proviso to Section 11A(1) of the said Act was relied upon and the extended period of limitation was invoked. It was an admitted position that though such excise duty was payable by the appellant, the said amounts were not paid. In fact, the appellant got itself registered only after service of the show cause notice. He referred to the relevant observations as made by the Commissioner as well as the Tribunal in the impugned orders while upholding the show cause notice. He, therefore, submitted that no interference was called for with the order passed by the Tribunal. 7. We have heard learned counsel for the parties at length and we have given due consideration to their respective submissions. The facts on record indicate that prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be licenced, would not attract the penal provisions of Section 11A of the Act. If the facts are otherwise, then the position would be different. 9. This view has been reiterated by a larger Bench in Cosmic Dye Chemical (supra) while holding that mis-statement or suppression of facts must be wilful on the part of the manufacturer or producer. Mere suppression or mis-statement of facts if not wilful would not be a sufficient ground. From the aforesaid it is clear that there has to be material on record to hold that with an intention to evade payment of central excise duty there has been mis-statement or suppression of facts. 10. When the material on record is perused it becomes clear that in the reply to the show cause notice itself the appellant had stated that in view of exemption Notification No.74/1993 which was applicable to it till 31.3.1996, the appellant was not aware of the procedure as regards charging and paying excise duty. It became a statutory Corporation and there was no intention to evade the payment of central excise duty in any manner whatsoever. While admitting that it was liable to pay central excise duty it was stated that the penalty or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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