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2015 (9) TMI 1203 - AT - Central ExciseApplicable basic excise duty rate - Applicability of education cess and secondary and higher education cess third time - Held that:- There is no dispute that the appellant has applied the incorrect rate of duty. However, it is the submission that they have been indicating the rate of duty applied by them in the monthly returns and the department never pointed out that the duty rate has gone up and so they are required to pay higher rate of duty and as soon as this was pointed out, they immediately paid the differential duty. Under the circumstances, there is no wilful misstatement on the part of the appellant. There is no suppression of fact and none of the ingredients to imposed penalty under Section 11AC are present in the case. Under the circumstances, penalty imposed under Section 11AC corresponding to the first issue is set aside. Issue is decided in appellants favour in the case of Kumar Arch Tech Pvt. Ltd. (2013 (4) TMI 482 - CESTAT NEW DELHI) and in view of this position, the third time demand relating to education cess and secondary and higher education cess no more survives and the demand on this count is, therefore, set aside. Since the demand has been set aside, no penalty is imposable on this count. - Decided in favour of assessee.
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