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2009 (7) TMI 318 - AT - Central ExcisePenalty imposed on them under Section 11AC - payment of duty before issuance of show-cause notice – determination of duty under sub-section (2) of section 11A arises only when SCN issued – SCN can be issued for amount short paid even after duty payment by assessee but no such short payment in impugned case – payment of duty was made by the appellant in the present case and the same was intimated to the proper officer of Central Excise. In the circumstances, there was no reason to issue any show-cause notice to the appellant in respect of the duty paid by them.. – show-cause notice was issued in breach of the injunction contained in subsection (2B) of Section 11A. - Section 11AC of the Central Excise Act was erroneously invoked against the appellant - determination of duty by the proper officer of Central Excise under sub section (2) of Section 11A of the Central Excise Act is a pre-requisite for imposing penalty under Section 11AC of the Act; - No such penalty can be imposed unless one or more of the requirements laid down under Section 11AC are satisfied in a given case; - Penalty under Section 11AC of the Act cannot be avoided by mere reason of the duty having been paid prior to issue of show-cause notice; - appeal is allowed
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