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2014 (12) TMI 231 - AT - Central ExciseValuation - Challenge to levy of penalty u/s 11AC - Suppression of the actual figures of forwarding charges collected on Ex-mill sales and of the depot handling charges collected, with intent to evade Excise Duty - contravention of provisions of Section 4 - Penalty u/s 11AC - Held that:- Show cause notice dated 27-3-2001 alleged suppression of material facts and short remittance of duty with an intent to evade the same. This allegation was the basis for invoking the extended period of limitation, under the proviso to Section 11A(1) of the Act. The proceedings culminated in the primary adjudication order which confirmed levy of the specified quantum of deficit Excise duty. An unsuccessful appeal against the primary order resulted in confirmation of the duty. The appellate Authority recorded clear reasons and conclusions, as to suppression of material facts by the appellant justifying invocation of the extended period. The appeal to this Tribunal is, as earlier recorded by us herein, confined to the validity of penalty imposed under Section 11AC. The appellant did not challenge the order of this Tribunal. Since the ingredients for confirmation of the duty liability, on invoking the extended period of limitation; and for imposing penalty under the provisions of Sections 11A and 11AC, respectively, are in pari materia, in our considered view, the conclusion/finding that the appellant had suppressed material facts while under-remitting the Excise duty, constitutes the generic integer for confirmation of penalty under Section 11AC. None of the decisions presented by the appellant expound a contrary ratio nor is any decision brought to our notice expounding the proposition that where confirmation of the liability to tax/duty is founded on a conclusion as to existence of ingredients which are in pari materia the ingredients for imposition of penalty as well, in a challenge to imposition of penalty alone (and when the confirmation of tax/duty has attained finality), the correctness of finding of suppression etc. on the basis of which the confirmation of tax/duty is recorded, is liable to be reconsidered. no error in the impugned order imposing penalty under Section 11AC of the Act, since the order of the appellate Commissioner confirming levy of Excise duty, on invocation of the extended period of limitation and on the basis of the recorded finding that the appellant had suppressed relevant facts while short remitting duty, has become final - Decided against assessee.
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