TMI Blog2016 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.03.2011 for 54 days and for the remaining period the interest was computed by adopting 18% rate of interest. Whereas, on perusal of the computation done by the appellants at page 16 and 17 of the paper book for the total delayed payment of duty for the month of January, 2011 they have computed by taking the rate of interest @13%. Therefore, we do not find any merit in the appellant's contention and they are liable to pay the total interest of ₹ 17,35,425/-. Since they have already paid the interest of ₹ 15,45,788/-, the differential amount of interest of ₹ 1,87,637/- is liable to be reversed. As regards penalty, on perusal of the show cause notice, we find the penalty was proposed under Section 11 AC of the CEA as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he brief facts of the case are that the appellants are 100% EOU engaged in the manufacture of Diesel Generating sets with control panels, switchgears, Enclosures and accessories etc. and they are entitled upto 50% of the FOB value of exports into DTA sales. They have cleared the goods to their DTA unit in the month of January, April, May and August, 2011, without payment of duty. Accordingly, a show cause notice dated 20.01.2012 was issued to the appellant demanding duty of ₹ 1,12,25,765/- along with the proposal for interest and penalty under Section 11AC of the Central Excise Act, 1944 and also under Rule 25 of Central Excise Rules, 2002. The adjudicating authority in his order confirmed the demand of ₹ 1,12,25,765/- under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He drew attention to para-10 of the Order-in-Original and submits that entire amount of duty was paid on various dates and the last installment was paid on 15.04.2012, before passing of the adjudication order. He prays for waiver of penalty as there is no mis-declaration and intention to evade payment of duty and there is no suppression of facts. He further submits that the Company is under BIFR. 4. On the other hand, the Ld. AR, Shri Veerabadra Reddy, JC (AR) reiterated the findings of the Order-in-Original and drew attention of the Bench to paras 9 10 of it and submits that the appellants have cleared the goods without payment of duty. Therefore, show cause notice has been issued for non-payment of duty and the demand has been right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. The appellants contention is that the duty not paid for the month of January, 2011, only 13% interest was chargeable from the due date till the payment of duty and not 18%. On perusal of the records and date of payment, we find that the appellants have paid duty on various dates ie. on 8/10/2011, 12/12/2011, 31/3/12 and 05/04/2112. We also find that the statutory interest prescribed during the period from January to March, 2011 @ 13% and from 01.04.2011, the statutory interest has been increased to 18%. The adjudicating authority had rightly computed the interest amount from the due date to till the date of payment in respect of demand for the month of January, 2011. Since the appellants paid the amount on 8.10.11, 12/12/2011 and 31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt came to know the non-payment of duty only from the said ER-2 returns and initiated proceedings. The adjudicating authority recorded in his findings that they have indicated the duty amount in the column duty payable but the column under duty paid was left blank. We find that the entire case is basically of delayed payment under Rule 8 and the consequential demand by the department. We find that the show cause notice was issued on 20.01.2012. Before the issue of SCN itself, the appellant paid ₹ 25,00,000/-, ₹ 20,00,000/- was proposed for appropriation in the SCN and the balance amount was paid with interest before issue of adjudication order. Therefore, we hold that there is no mensrea or intention to evade payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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