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2015 (11) TMI 707 - AT - Central ExciseDuty demand u/s 11A - Abatement of duty - since the value of Anode Slime had been determined on the value of its silver content and since during the period of dispute, there was no duty on silver, while determining the value of silver content, its excise duty element could not be abated - Bar of limitation - Held that:- In the order-in-original passed by the Assistant Commissioner, he has given clear finding that he does not find any evidence of wilful mis-statement, fraud or collusion, suppression of facts on the part of the assessee which resulted in short payment of duty and for this reason, while confirming he duty demand, he has not imposed any penalty under section 11AC. Since the duty demand is for the period beyond the normal limitation period of one year, it would be sustainable only if the proviso to section 11A(1) could be invoked which can be invoked only if non-payment or short payment of duty is on account of fraud, wilful mis-statement, collusion, suppression of facts or contravention of any provisions of the Central Excise Act, 1944 or of the rules made therein with intent to evade the payment of duty on the part of the assessee. In exactly the identical situations, the penal provisions of section 11AC are attracted. When with regard to the penal provisions of section 11AC, the Assistant Commissioner has given a finding that he does not find any evidence of wilful mis-statement, fraud or collusion on the part of the assessee etc. and for this reason, he has not imposed any penalty on the assessee under section 11AC, he cannot confirm the demand beyond the normal limitation period by invoking proviso to section 11AC. Therefore, without going into the merits of the case, we are of the view that duty demand is time barred - Decided against Revenue.
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