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2018 (8) TMI 1574 - AT - Central ExcisePenalty u/s 11AC - supply of excess quantity - Clearance of Bitumen (Asphalt) to contractors who are engaged in executing the road projects - N/N. 108/95 dated 28.8.1995 - case of appellant is that the supply of excess quantity was due to inadvertence - Extended period of limitation was invoked for raising demand - whether there is suppression of facts with intent to evade payment of duty? - Held that:- The equal penalty envisaged in Section 11AC does not automatically get attracted in every case of non-payment or short-payment of duty. To state otherwise, on merely opting to pay the demand confirmation, for the extended period alleged in show cause notice, the penalty under section 11AC would not apply. To attract the heavy penalty envisaged under Section 11AC, the ingredients under the said Section has to be established. Penalty under this Section is for some contumacious conduct or for a deliberate act with intent to evade payment of duty. As the appellant contests the penalty imposed under Section 11AC, it becomes necessary to analyse whether the department has been able to establish the ingredients of Section 11AC - In the present case, the allegation is that the appellant has cleared excess quantity of Bitumen than that has been mentioned in the certificates issued as per Notification 108/1995. They have raised proper invoices showing that Bitumen is cleared as per Notification 108/1995 without collecting duty. The ER1 returns also reflected the excess quantity supplied. The appellants have not concealed the supply of the goods or is there any allegation that they have diverted the goods to any other customers. They have cleared the goods only to the contractors of the road project - There is no deliberate deception by any means of willful suppression, fraud or misrepresentation established on the part of the appellant. It has to be taken note that the appellant is a public sector undertaking - Appreciating the facts as well as evidence, it can be concluded that the department has not established suppression of facts with intent to evade payment of duty as provided under section 11AC of the Act. The penalty imposed under section 11AC is unjustified - appeal allowed - decided in favor of appellant.
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