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TMI Blog2022 (10) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or willful mis-statement or suppression of fact or in contravention of any of the provision of this act or rules made therein with intent to evade payment of duty. The appellant was very conscious while debonding of the unit and duty so payable on the stock of the goods as on 03.01.2008 was calculated and paid the duty on that basis. The departmental officers have issue NOC enabling the appellant to exit from EOU status however, there are some transaction of the goods from 03.01.2008 till 28.01.2008 on which also the duty by EOU was supposed to be paid. The appellant was well aware that the duty due on the stock was required to be paid for debonding of the EOU. Though, the appellant have paid the duty on the stock as on 03.01.2008 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty was confirmed and the same along with payment of interest has been appropriated. Apart from duty and interest, a demand of equal penalty under Section 11AC was imposed. The appellant before the adjudicating authority as well as the Commissioner (Appeals) agitated only in respect of imposition of penalty under Section 11AC. Both the authorities have held that appellant are liable for penalty of equal amount under Section 11AC and therefore, the present appeal filed by the appellant. 02. Shri Amal Dave, learned counsel appearing on behalf of the appellant submits that the appellant on pointing out by the audit immediately paid the short payment of duty along with interest. There was no mala fide on the part of the appellant therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udit party they have paid the duty. The appellant were very well aware that the short payment was supposed to be paid at the time of debonding of the unit but they suppressed this fact till the audit has pointed out therefore, the penalty under Section 11AC was rightly invoked and imposed by both the lower authorities. 04. I have carefully considered the submissions made by both the sides and perused the records. I find that there is no dispute about the duty and interest which were already paid by the appellant on pointing out by the audit. The only limited issue to be decided by me in the given facts and circumstances is that whether the appellant is liable to pay penalty under Section 11AC. I find that the show cause notice has propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and attained liability to duty of Central Excise after the date of computation by the jurisdictional Customs and Central Excise authorities. The assessee having already undergone the process of assessment of duty, in respect of finished goods lying on the date of such computation by the relevant authorities, they ought to have realised that this is the finished goods that came into being after such date would be similarly leviable, to duty on the same criterion. As against this, however, the assessee seems to have conveniently ignored to assess and pay duty thereon. I find that but for the detailed audit and other enquiry having been done such short payment of duty had gone undetected. The lapse of willful misstatement and suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11A, and the interest payable thereon under Section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five percent of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then for the purposes of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty was not paid by reason of fraud or collusion or willful mis-statement or suppression of fact or in contravention of any of the provision of this act or rules made therein with intent to evade payment of duty. Now, in the present case whether any of these ingredients exists in the facts of the present case needs to be examined. I find that the appellant was very conscious while debonding of the unit and duty so payable on the stock of the goods as on 03.01.2008 was calculated and paid the duty on that basis. The departmental officers have issue NOC enabling the appellant to exit from EOU status however, there are some transaction of the goods from 03.01.2008 till 28.01.2008 on which also the duty by EOU was supposed to be paid. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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