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TMI Blog2022 (8) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... tantive dispute between the Department and the Assessee revolved around the question whether valuation adopted by the assesse on the basis of transaction value under Section 4(1)(a) of the Central Excise Act, 1944 or should have followed the provisions of Rule 7 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000. The penalty provision stands attracted where duty of excise has not been levied or paid or has been short-levied or short-paid by the reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with intent to evade payment of duty. Thus, the prerequisite being there should be material to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 26-8-2022 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Shri N.K.Chowdhury, Advocate for the Appellant Shri S.S.Chattopadhyay, Authorized Representative for the Respondent ORDER The Ld. Advocate appearing on behalf of the appellants, submits that subsequent to audit observation, it was noticed that the Appellant had stock transferred their finished goods to depot at Gaziabad Branch after paying Central Excise duty at factory gate and subsequently sold the same from the depot at Gaziabad Branch. Audit observed that the assessee had adopted the valuation in respect of their finished goods cleared to depot at Gaziabad Branch on the basis of transaction value under Section 4 (1)(a) of the Central Excise Act, 1944 instead of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.09.2019, you have not fulfilled the conditions, as mentioned above, hence you are ineligible under the Scheme. Therefore, the SVLDRS 1 application filed under ARN No.LD3112190005788 dated 31.12.2019, being ineligible, is hereby rejected. In spite of enough follow-up, the Appellant assessee was not issued Form No.SVLDRS-4, which is discharge Certificate for full and final settlement of Tax Dues under Section 127 of the Finance (No.2) Act, 1994 read with Rule 9 of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. 5.1 After giving careful consideration to the submissions, I am of the view that in the peculiar facts and circumstances of this case, the plea for vacating the penalty is tenable. The substantive dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the material facts or by making wilful misstatement or by committing fraud or collusion. Thus, in the absence of any such specific allegation in the show cause notice, the authority cannot mechanically impose penalty under Section 11AC of the Act. The provisions of Section 11AC of the Act are attracted in the event of establishing fraud, collusion or suppression of facts or made any wilful misstatement with an intent to evade payment of duty. This has not been done in the present case. Moreover, the duty itself has been remitted on 26.03.2015 even prior to issuance of show-cause notice. However, I find that the Tribunal has all along taken a consistent view that when the entire demand along with applicable interest has been paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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