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2015 (10) TMI 1655 - AT - Central ExciseDuty demand - Clearance of goods on the basis of EPCG License - Penalty u/s 11AC - Held that:- Appellant is clearing the goods to their buyers on the strength of EPCG licence which were endorsed in the name of the appellant by the buyer of the goods and the appellant is filing ER-1 return showing clearance against EPCG licence. But it is admitted fact that the appellant has not disclosed that under which notification they are claiming exemption and were not paying duty. As the appellant is filing ER-1 return regularly showing clearance against EPCG licence and not disclosed that under which notification number they are claiming exemption, burden of proof cast on the Revenue to ask the appellant under which notification they are claiming exemption. Without doing this effort and without scrutinizing ER-1 return, the investigation was conducted. Therefore, suppression cannot be alleged in these circumstances. Furthermore, as the appellant paid duty along with interest on pointing out by the department, show cause notice was not required to be issued as per Section 11A(2B) of Central Excise Act, 1944 read with Board’s Circular No. 137/167/2006-CX-04, dated 3-10-2006. Consequently, the penalty is not imposable on the appellant. - Impugned order is set aside - Decided in favour of assessee.
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