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2016 (3) TMI 1048 - CESTAT BANGALOREPenalty invoking provisions of Section 11AC - willful misstatement of facts - shortages of phosphoric acid and sulphuric acid - Held that:- Willful misstatement or suppression of facts with intent to evade payment of duty is not established on the part of the appellants. The special facts of the case that a Government of India Enterprise - a Public Sector Undertaking (and its employees) are part of the proceedings and that “willful misstatement of facts with intent to evade duty” have not been found proved. Consequently, the demand of duty in both the appeals beyond the period of one year from the date of show-cause notice cannot survive. Revenue , thus has to recalculate the duty liability in respect of only one year period for which the demand has been found lawful as willful misstatement or suppression of facts with intent to evade payment of duty on the part of the appellants have not been found to be existing. The original adjudicating authority is directed to recalculate the duty liability in respect of the said shortages of phosphoric acid and sulphuric acid arrived at by the impugned Orders-in-Original. The demand of duty along with interest at appropriate rate for this said shortage, which is accountable for the period of only preceding one year prior to the date of show-cause notice is hereby sustained under the provisions of Section 11A(1) of Central Excise Act, 1944 read with Rule 6 of Central Excise (RGCRDMEG) Rules, 2011 and Section 11AB of the then Central Excise Act, 1944. In this regard, the appellants are directed to give all the documents if required by the original adjudicating authority and original adjudicating authority will also give the appellants sufficient opportunity by way of personal hearing to produce the data and documents, if any. This process of revision and recovery of demand has to be completed within three months of receipt of this order.
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