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2018 (7) TMI 252 - AT - Central ExciseValidity of SCN - Section 11A (2B) of the Central Excise Act, 1944 - shortage of stock as reflected in the statutory records i.e. Daily Stock Register - case of appellant is that the Central Excise Officers ascertained the duty liability during the stock verification conducted on 20.09.2006 of ₹ 11 lakhs and which was paid by them vide post dated cheques. Therefore, in terms of the provisions of Section 11A (2B) of the Central Excise Act, 1944, there is no requirement to issue the SCN - time limitation. Held that:- On close reading of Section 11A (1), it is seen that the Central Excise Officers are required to issue notice within one year from the relevant date on the person chargeable with duty which has not been paid. In case, there is fraud, collusion or willful misstatement, etc., the notice should be issued within five years - Sub-section (2B) of Section 11A of the Act had given an option to the assessee to 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, and to inform the Central Excise Officer in writing, who, shall not serve any notice in respect of the duty so paid. In the present case, the duty is to be paid on 20.09.2006 i.e. the date on which the shortage has been detected by the Central Excise Officers. Therefore, the findings of the adjudicating authority that the information of payment of duty was given to the department on 09.02.2007 are contrary to the evidence on record. It is on record that the Central Excise officers deposited the post dated cheques from 26.10.2006 onwards in the bank for encashment vide TR-6 challans. Hence, the finding of the adjudicating authority is not sustainable. There was no requirement to issue SCN as per provisions of Section 11A (2B) as the appellant had already paid the duty as ascertained by the officers before issuance of SCN - the impugned order is modified to the extent that the demand of ₹ 11 lakhs as deposited by the appellant before issuance of Show Cause Notice is upheld and the balance amount of demand of duty alongwith interest and penalty are set aside. Appeal allowed in part.
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