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TMI Blog2023 (8) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that, in the facts and circumstances of the present case, it cannot be alleged that there was any suppression of facts with intent to evade payment of excise duty. The Assistant Commissioner, in the order dated 23.03.2021, has merely observed that since the appellant in reply to the show cause notice had not produced any document/proof affirming the non involvement of any fraud/collusion of tax it has to be concluded that there was involvement of fraud/collusion and so penalty could be imposed. This finding of the Assistant Commissioner is not correct. The penalty could not have been imposed if the amount with interest had been deposited before the issuance of the show cause notice but there was no intention to evade payment of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty. 2. The appellant contends that the prices of the goods manufactured by the appellant are under the control of the Government of India and the Government of India also gives subsidy as the selling price of the fertilisers manufactured is always lesser than the cost of production. According to the appellant, apart from the costs that are included in the price for determination of the assessable value, there are certain charges collected by some State Governments. Earlier, the appellant included 940 PMT towards such charges in the assessable value of the goods cleared for storage in their marketing offices, but on 25.07.2016, there was a downward revision of the charges from Rs. 940 PMT to Rs. 420 PMT and then an upw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with an intent to evade payment of excise duty, no penalty could have been imposed, more particularly when the appellant is a Central Public Undertaking with majority of the shareholdings in the name of the President of India. 6. The Assistant Commissioner, however, by order dated 23.03.2021 confirmed the imposition of penalty after appropriating the duty amount and interest deposited by the appellant. The relevant portion of the order passed by the Assistant Commissioner is re-produced below: III . I observed that the Noticee have made the payment of Central Excise Duty of Rs. 1,54,970/ -vide Challan No. 2019116164223109566 dated 16.11.2019 and interest of Rs. 49,612/- vide Challan No. 20191116164857110226 dated 16.11.2019. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/-vide challans dated 16.11.2019. Thus, I find that the ingredients to invoke Section 11A of the Act are present in this case which has led to confirmation of demand of Rs. 1,54,970/-. As these very ingredients find mention in Section 11AC of the Act, I find that the Section 11AC would also get attracted in the instant case. Hence, I find that the various case laws cited by the Appellant do not apply to this case. 7. In view of the above, I find that the various case laws cited by the Appellant do not apply to this case. Further, I rely on Hon ble CESTAT s order in the case of Commissioner of Central Excise Service Tax, LTU, Delhi vs. Gas Authority of India Ltd. [2019 (366) ELT 941 (Tri.-Del.)] wherein it has been held that mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also stated that, in the facts and circumstances of the present case, it cannot be alleged that there was any suppression of facts with intent to evade payment of excise duty. The Assistant Commissioner, in the order dated 23.03.2021, has merely observed that since the appellant in reply to the show cause notice had not produced any document/proof affirming the non involvement of any fraud/collusion of tax it has to be concluded that there was involvement of fraud/collusion and so penalty could be imposed. This finding of the Assistant Commissioner is not correct. It was for the department to not only allege in the show cause notice that there was an intention to evade payment of excise duty but also substantiate it. A burden was cast u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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