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2023 (8) TMI 182 - CESTAT NEW DELHIImposition of penalty under section 11AC of the Excise Act equivalent to the amount of duty - excise duty with interest had been deposited by the appellant before the issuance of the show cause notice - suppression of facts or not - HELD THAT:- The appellant has given reasons as to why the excess excise duty paid by the appellant was adjusted in the excise duty payable in the month of June 2017. According to the appellant, Goods and Service Tax was introduced with effect from 1 July 2017 and the appellant believed that it was better to adjust the excess excise duty paid. The appellant has also stated that, in the facts and circumstances of the present case, it cannot be alleged that there was any suppression of facts with intent to evade payment of excise duty. The Assistant Commissioner, in the order dated 23.03.2021, has merely observed that since the appellant in reply to the show cause notice had not produced any document/proof affirming the non involvement of any fraud/collusion of tax it has to be concluded that there was involvement of fraud/collusion and so penalty could be imposed. This finding of the Assistant Commissioner is not correct. The penalty could not have been imposed if the amount with interest had been deposited before the issuance of the show cause notice but there was no intention to evade payment of excise duty. In the present case, not only had the department failed to substantiate that the appellant had suppressed facts with intent to evade payment of excise duty, but even otherwise it is not a case where it can be said that the appellant had intention to evade payment of excise duty. In such a situation, penalty could not have been imposed upon the appellant since the excise duty with interest had been deposited by the appellant before the issuance of the show cause notice - appeal allowed.
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