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2017 (7) TMI 388 - AT - Central ExciseApplicability of provisions of Section 11A(2B) of the Act - in respect of a few invoices the appellant while clearing the goods, under CETH 8535, have not followed the MRP based assessment in terms of Section 4A of the Act - differential duty paid before issuance of SCN - Held that: - Section 11A(2B) provides for closure of proceedings without issue of notice where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him. There is no evidence on record to sustain the allegation of wilful misstatement, fraud or intention to evade payment of duty. Apparently, the longer period of short payment alone was considered as reason enough for non-closure of case under Section 11A(2B). This much has been recorded by the lower authorities also. We find the short payment spread over longer period by itself will not bar the closure of case, without SCN. While upholding the payment of differential duty alongwith interest by the appellant, the penal proceedings against the appellant are found to be untenable - appeal allowed - decided partly in favor of appellant.
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