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2022 (6) TMI 977 - Central Excise
Head Note / Extract:
Evasion of Central Excise duty - non-maintenance of invoices - non-payment of applicable duty - HELD THAT:- The show-cause notice alleges that the appellants have evaded duty of Rs.22,56,445/-. The verification report submitted by the Department in respect of 62 invoices as per the direction of the Bench vide order dated 15.01.2020, shows that the appellants have discharged the duty of Rs.20,91,667/-. Therefore, it is found that to that extent, the Demand does not sustain. The duty of balance amount of Rs.1,64,778/- appears to have been not paid as per the verification report. Though the appellant claims that he has paid the duty, but no evidence of the same has been provided. Moreover, the Range Superintendent has given a fair opportunity and there are no reason whatsoever to dis-believe its report and accept the submission of the appellants that the duty is paid - the duty of Rs.1,64,778/- remains to be considered paid along with interest under Section 11B of the Central Excise Act, 1944. It is found that the same is liable to be paid by the appellants. Accordingly, the equal amount of penalty is liable to be paid by the appellants under Section 11AC of the Central Excise Act, 1944. After going to the procedural infraction alleged to be committed by the appellants, it is found that the appellants have not denied the various allegation levied in the show-cause notice. It is found that the show-cause notice did not seek to impose separate penalty under Rule 26 of the Central Excise Rules, 2002 on the appellants. It only proposed to impose penalty under Section 11AC read with Rule 26 of the Central Excise Rules, 2002. As per the findings as above, it is ordered that the appellant shall pay the non-paid duty of Rs.1,64,778/- along with penalty under Rule 11 AC ibid. It is not found that there is need to impose any other penalties. Keeping in view the facts of the case that substantial allegations of the Department that the appellants have not paid duty, have fallen flat - the penalty under Section 26 is inextricably linked to the confiscation of goods as long as there is no confiscation of the goods ordered that there cannot be a case for imposition of penalty under Rule 26. Therefore, it is found that the penalty under Rule 26 cannot be sustained either on the appellant or on the Managing Director of the appellant company. Duty confirmed against the appellant is restricted to Rs.1,64,778/- - Penalty of equal demand under Section 11AC would be confirmed - appeal allowed.