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TMI Blog2022 (11) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... ai-III, Belapur. By the impugned order, following has been held: "Hence penalty equivalent to the duty confirmed in the impugned order is imposed. Accordingly, the appeal filed by the revenue is allowed." 1.2 Revenue had filed appeal against the order in original No 75/KSM/2011-12 dated 29.12.2011 of the Additional Commissioner Mumbai-III, Thane, holding as follows: "Order a. I confirm the demand of Rs. 21,11,604- (Rupees twenty one lakhs eleven thousand six hundred four only) which was paid by the assessee at the time of raising supplementary invoices and also order appropriation under the proviso to Section 11A(1) of the Central Excise Act, 1944. b. I confirm the demand of Rs. 31,333/- (Rupees thirty one thousand three hundred thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amounting to Rs.31,333/- (Basic Excise Duty Rs 30,420 + Education Cess Rs.609/- + SH Ed. Cess Rs.304/-), short paid by the assessee and subsequently paid vide PLA debit E.No. 21 dt. 31.01.2011 should not be demanded and appropriated under the proviso to Section 11 A (1) of the Central Excise Act, 1944. iii) Interest amount of Rs. 47,401/- which was payable on the duty mentioned at (1) above, and Interest amount of Rs. 8,669/- on differential duty mentioned at (ii) above should not be demanded and appropriated under Section 11AB of the Central Excise Act, 1944 and iv) Penalty should not be imposed upon them under Section 11AC of the Central Excise Act, 1944 read with Rule 27 of Central Excise Rules, 2002." 2.3 The show cause notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y alongwith the interest. I find that the said payments of duty and interest have been made by the assessee and also have been informed by the assessee to the department from time to time. I also see that the assessee has been issued with the notice much after the payment of duty and interest made by the assessee. 16. The issue as to whether the duty paid before issuance of show cause notice would attract the benefit of sub-section (2B) of Section 11A of the Central Excise Act, 1944, was subject matter of discussion before the Tribunal. Hon'ble Tribunal in case of Commissioner of Central Excise, Pune-III V/S Victor CNG Engg. reported in 2009 (248) E.L.T. 438 (Tri. -Mumbai) observed that the assessee was entitled to the Benefit of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s "by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made there under with intent to evade payment of duty ", under the scheme of the four Sections (11A, 11AA, 11AB & 11AC) interest is leviable on delayed or deferred payment of duty for whatever reasons. 11. The payment of differential duty by the assessee at the time of issuance of supplementary invoices to the customers demanding the balance of the revised prices clearly falls under the provision of sub-section (2B) of Section of 11A of the Act." In view of above case-laws, I hold that the case squarely falls within the ambit of sub-section of (2B) of Section 11A of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment. Four years i.e. between 2006-07 to 2009-10, have lapsed but they waited for the Department to inform about payment of interest. In the same way, in the case of short payment of duty, the respondents continued to pay duty at a lesser rate for a period of two years. The rate of duty changed three times during the subject period. But the appellants continued to pay duty at a lesser rate. It cannot be expected that in a Multi National Company, the fact of short payment of duty and non payment of interest remain unattended or went unnoticed. Hon'ble Tribunal in the case of Bajaj Tempo Ltd Vs Commissioner of Central Excise & Customs, Pune, 2001 (133) E.L.T. 749 (Tri. - Mumbai)"appellant being a company having huge turnover, aware th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11AC of the said Act. Hon'ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills (2009(238) ELT 3 (SC) that it is mandatory to impose penalty under Section 11AC where the ingredients for imposition of penalty under Section 11AC are found." 4.4 Admittedly and undisputedly the entire duty amount and interest thereon has been paid by the appellant prior to issuance of any show cause notice either on their own ascertainment or on being pointed out by the revenue during the course of audit. Section 11 A (2B) of the Central Excise Act, 1944 reads as follows: "(2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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