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TMI Blog2024 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... That the onus of countering the ingredients for resort to such penalty does not devolve on the appellant from having been aware of propensity of theirs, from experience of the past, to indulge in such evasion is neither logically acceptable nor legally tenable. However, it is on record that the appellant had, upon being prompted and before issue of notice, made good the differential duty with interest. It is also on record that credit of such duty had been enabled by issue of supplementary invoices thereafter. It is not the case of Revenue that proceedings for recovery of such credit had been initiated or concluded from which it may be inferred that entitlement to credit was undeniable. It is of no less relevance to note that, though penalty has been imposed under section 11AC of Central Excise Act, 1944, this is not an autonomous provision empowering imposition. On the contrary, devolution and extent thereof are controlled by section 11A of Central Excise Act, 1944 and implicit therein is cause and effect as set out in the recovery provision. In these circumstances, with the discharge of differential duty liability along with interest, on their own determination, by the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Determination of Price of Excisable Goods) Rules, 2000 and stipulation in circular no. 692/08/2003-CX dated 13th February 2003, to be based on cost of production as evinced in CAS 4 certification. Instead of drawing upon the said CAS 4 details for each year, the adoption of that pertaining to 2008 for later years by the appellant came under scrutiny of jurisdictional central excise authorities and, upon being intimated of the requirement for furnishing of certificates for each of the years, complied thereon and made good the differential duty of ₹ 2,99,06,684 along with interest of ₹ 85,59,228 in August and September 2012. The impugned order was culmination of notice dated 4th July 2013 proposing recovery of duty and interest as well as imposition of penalty. 3. In response thereof, the noticee, by letter dated 27th September 2013, countered the proposals in the notice and also intimated that they had ceased to be manufacturers as far back as November of the previous year. Owing to transfer of the facility to another entity which, having assumed responsibility for past and future liabilities, should have been the surrogate noticee. That these facts were within the ken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as on date of issue of show cause notice, foreclosing any liability to be proceeded against is no less germane to lack of standing for claim that duty and interest, proposed for recovery in notice, be returned to them. Their lack of existence, as claimed by them, resists feasibility for preferring such claim at any stage after November 2012. The contractual arrangements for assumption of pending and future liabilities cannot operate to nullify the payment of duty by debit of CENVAT account and of personal ledger account towards differential liability. The appropriateness, or otherwise, of initiating proceedings under section 11A of Central Excise Act, 1944 does not vitiate remedial reparation of their own volition. Likewise, with delay in payment of duty, interest under section 11AB of Central Excise Act, 1944 that crystallized thereon, and made good along with differential duty, was not subject to any subsequent contractual arrangement for alienating the devolution of responsibility in section 11A of Central Excise Act, 1944 and other entailed consequences. 6. We are, therefore, restricting the scope of appellate controversy to the penalty imposed by the adjudicating authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od is concerned, the claim rests upon (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 duty, may pay the amount of duty [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. in section 11A of Central Excise Act, 1944 which is, nevertheless, circumscribed by Explanation 1 ̶ Nothing contained in this sub-section shall apply in a case where the duty was not levied ..... 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