9911796707
TMI Blog2024 (6) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules made there under with an intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section 2 of Section 11A shall also be liable to pay a penalty equal to the duty so determined. In terms of the above provisions, the duty has to be necessarily determined under sub-section 2 of Section 11A has to determine the duty of Excise due from such person and there upon such person shall pay the amount so determined. In the impugned order, it is found that there is no allegation or determination of duty as per Section 11A (2) invoking the proviso to Section 11A. Therefore, the notice and the impugned orders imposing penalty under Section 11AC without determining the duty under Section 11A(2) as per the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest for waiver of show-cause notice under Section 11A(2B), Explanation 1 wherein it is stated that waiver of show-cause notice is not applicable in those cases where short levy is on account of fraud, collusion, or any willful misstatement or suppression or any contravention of this act and the rules made thereunder to evade payment of duty. The same was upheld by the Commissioner (A) in the impugned order. 2. The learned counsel on behalf of the appellant submits that it is an admitted fact that immediately on audit s observation; the differential amount was paid along with interest and a written request was made for waiver of show-cause notice. It is submitted that in spite of that show-cause notice was issued proposing penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 (9) TMI 63 CESTAT, Bangalore. iii. M/s. Talisma Corporation Pvt. Ltd. Vs. CCE, Bangalore: 2017 (10) TMI 785 CESTAT, Bangalore. 3. The learned Authorized Representative reiterating the findings of the Commissioner (A) submitted that Section 11AB Explanation 1 is very clear and hence, Section 11AC was rightly imposed. The fact that there was no proposal to determine the duty and confirm the same should not make the appellant eligible for waiver of Section 11AC penalty. 4. Heard both sides. It is on record that during audit of the unit and on verification of records, it was found that the amortization cost of moulds was not being added by the appellant while clearing the TV parts manufactured by them. On being pointed out, the differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by reasons of collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of the Act or the Rules made there under with an intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section 2 of Section 11A shall also be liable to pay a penalty equal to the duty so determined. In terms of the above provisions, the duty has to be necessarily determined under sub-section 2 of Section 11A has to determine the duty of Excise due from such person and there upon such person shall pay the amount so determined. In the impugned order, we find that there is no allegation or determination of duty as per Section 11A (2) invoking the proviso to Section 11A. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2005. The assessee sent a reply contending that they have already paid the duty and penalty and therefore, they are not liable to pay the same. However, the Assessing Authority i.e., Assistant Commissioner, relying on the judgment of the tribunal set out in the order, accepted the case of the assessee and took note of the fact that even before the issue of show cause notice demanding penalty, they had voluntarily paid the duty and interest and therefore, he did not propose to impose any penalty. Aggrieved by the same the revenue preferred an appeal before the Commissioner of Central Excise (Appeals-I) who interfered with the order passed by the Original Authority and held as these irregularities were noticed in the course of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is a condition precedent for imposing penalty. If after demand of duty if the assessee without contesting the claim voluntarily pays the duty and interest payable thereon for the delay in payment of duty on the stipulated day, the question of the Officer determining the duty payable would not arise, It is only in cases duty is determined coupled with the fact that the duty is evaded by a reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, the liability to pay penalty arise. The Tribunal in the instant case on a careful consideration of the material on record has held firstly that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
