9911796707
TMI Blog2024 (10) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... Hanil Automotive India Pvt. Ltd., Sriperumbudur (hereinafter M/s. Hanil). The appellants were being supplied with moulds required for the manufacture of the above components and in respect of which they were found amortizing the cost of the moulds by including in the value of the moulded components supplied to M/s. Hanil and discharging the duty. 1.2 The dispute involved in this appeal is relating to non-inclusion of amortized value of the moulding machines supplied free of cost by M/s. Hanil to the appellants. As the moulding machines were supplied along with the tax invoices on which the appellant has taken the CENVAT credit, they were of the view that amortization of the cost of the machines was not required. However, during the prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the need for amortization of the value of the moulding machines supplied free of cost by M/s. Hanil and ignorance of law is not an excuse. Being aggrieved, the appellant came in appeal before this forum. 2.1 The Ld. Advocate Shri N. Viswanathan representing the appellant have submitted that they had informed the receipt of the moulding machines and taking of the credit of the duty paid on the machines in their records and there was no finding recorded in the adjudication orders of the Lower Authorities that the appellant had any conscious or deliberate intention to evade the payment of duty which is a sine-quo-non for invoking the provisions of Section 11A(4) of the Central Excise Act, 1944 relying on the decision rendered by the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied free of cost. 4. Heard both sides and considered the submissions and other evidences available in the records of the appeal. 5. The only issue that is required to be determined in this appeal is whether imposition of penalty under Section 11AC of the Central Excise Act, 1944, is justified or not? 6. It is evident from the facts of the appeal that the appellant had paid the differential duty of Rs.2,94,268/- along with interest Rs.30,160/- within a few days after the visit of the officers. So, we are of the view that the provisions of Section 11A(2) of the Central Excise Act, 1944 are clearly applicable to the facts of this case and invoking the provisions of Section 11A(4) of the Act ibid is not justified. The provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise that the show cause notice was time barred under the main part of Section 11A since it was issued after the expiry of the period of six months stipulated therein but the Additional Collector sustained the notice on the ground that it was within five years impliedly holding that the purported action was under the proviso to Section 11A of the Act. There is no dispute that the show cause notice cannot be sustained under sub-section (1) of Section 11A unless the proviso is attracted. Admittedly, it is beyond the period of limitation of six months prescribed under Section 11A(1) but it is within the extended period of 5 years under the proviso to that sub-section. Now in order to attract the proviso it must be shown that the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee contended that in the absence of any such allegation in the show cause notice the assessee was not put to notice regarding the specific allegation under the proviso to that sub-section. The mere non-declaration of the waste/by-product in their classification list cannot establish any wilful withholding of vital information for the purpose of evasion of excise duty due on the said product. There could be, counsel contended, bona fide belief on the part of the assessee that the said waste or by-product did not attract excise duty and hence it may not have been included in their classification list. But that per se cannot go to prove that there was the intention to evade payment of duty or that the assessee was guilty of frau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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