9911796707
TMI Blog2024 (6) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... the waste fatty acid, they have filed E.R.-1 returns regularly intimating the duty payment details. Thus, there are no suppression of fact with intention to evade payment of duty exists in this case. Accordingly, the penalty under Section 11AC is not imposable in this case and hence the penalty imposed on the appellant under Section 11AC of the Central Excise Act, 1944 is set aside. Quantum of duty liability - HELD THAT:- There is a difference between the duty liability determined by the appellant and the duty liability calculated by the Department - even though the appellant accepted the duty liability, the ld. adjudicating authority contended that there was a short payment of Rs.17,770/-. However, the appellant insists that as per their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 89/95-C.E. dated 18.05.1995. Consequent to the order passed by the Assistant Commissioner, Burdwan Division, the appellant did not discharge duty on the fatty acid / waste. Later, they came to know that duty was payable on such waste fatty acid as a by-product. 1.1. In September, 2011, the Officers of the Department, upon scrutiny of the returns, pointed out the non-payment of duty on the fatty acid / waste to the appellant. Immediately, the appellant paid the duty liability, as worked out by them along with interest. 2. A Show Cause Notice dated 30.12.2011 came to be issued to the appellant demanding duty along with interest. Penalty was also proposed to be imposed under Section 11AC of the Central Excise Act, 1944. 2.1. On ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Burdwan Division, they stopped their payment of duty on the fatty acid /waste. However, later, when they came to know that duty is liable to be paid on the fatty acid as a by-product, they paid the duty along with applicable interest. We observe that the appellant paid the duty calculated by them on 12.09.2011 and the Show Cause Notice was issued on 30.12.2011. Thus, the duty liability as determined by them has been paid along with interest much before issue of the Notice. Thus, we observe that there is no mens rea involved in this case on the part of the appellant to evade payment of Central Excise Duty. 8. The appellant submitted that as per Sub-section 2B of Section 11A of the Central Excise Act, 1944, if the duty is paid along with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y S HE Cess of Rs. 90,070.00 (Rupees Ninety Thousand Seventy) only aggregating Rs. 92,77,187.00 (Rupees Ninety Two Lakh, Seventy Seven thousand, One hundred and Eighty Seven) only. Therefore, an amount of Rs. 17,253.00 (Rupees Seventeen Thousand Two Hundred Fifty Three) only as Basic Central Excise duty alongwith Rs. 344.00 (Rupees Three Hundred Forty Four) only as Education Cess and Rs. 173.00 (Rupees One Hundred Seventy Three) only as SHE Cess, aggregating Rs. 17,770.00 (Rupees Seventeen Thousand Seven Hundred Seventy) only more remains to be paid by the noticee. 9.1. Thus, we find that even though the appellant accepted the duty liability, the ld. adjudicating authority contended that there was a short payment of Rs.17,770/-. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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