TMI Blog2010 (6) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K. Bhaskar, DR, for the Appellant. Shri Hemant Bajaj, Advocate, for the Respondent. [Order]. Both assessee as well as Revenue has filed appeal against the order of the Commissioner (Appeals) dated 29-2-2008 wherein the Commissioner (Appeals) confirmed the interest demand but dropped the penalty against the assessee. 2. The assessee filed the appeal against the confirmation of interest and Revenue filed the appeal against dropping the penalty. 3. The facts of the case are that the assessee is engaged in manufacturing of PSC Sleepers. During the course of scrutiny of records by the Central Excise Officers, on 19/20-9-2005, it was noticed that the assessee had been charging an amount of Rs. 37.74 towards reimbursement of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals). Moreover, if the department has not pointed out to the assessee for non-inclusion of the freight cost in the assessable value, department would have suffered the duty part also. So it is a clear cut case of suppression of facts with intent to evade duty. Hence penalty equal to duty is imposable on the assessee as rightly held in the case of Rajasthan Spinning and Weaving Mills by the Hon ble Apex Court [2009 (238) E.L.T. 3 (S.C.)]. 3. On the other hand, the learned Advocate appearing on behalf of the assessee submitted that the show-cause notice issued for payment of interest and proposal for penalty was time barred and the Commissioner (Appeals) has not considered the same in detail. To support his contention he placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has held that the show-cause notice is the foundation of demand under Central Excise Act, 1944. Show-cause notice proceeding on lines contrary to allegations, appeals dismissed in absence of allegation made in show-cause notice. He further relied on Bharat Seats Ltd. v. Commissioner of Central Excise., New Delhi reported in 2009 (242) E.L.T. 308 (Tri.-Del.) wherein it was held that penalty is not imposable without element of law, there cannot be levy of penalty under Section 11AC of the Central Excise Act, 1944. 4. Heard both sides. 5. After careful consideration of the submission made by both the sides. I find that issue in this case is whether the show-cause notice issued on 8-12-2006 for the period of April 2004 to September 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that limitation period as prescribed under Section 11A for recovery of non-levied short levied duty would also apply for recovery of interest on such duty under the provisions of Section 11AB. Since in this case admittedly interest demand pertains to the period from 16-9-2003 to 13-8-2004 and the show cause notice has been issued on 31-3-2006 and there is not allegation of misstatement or suppression of facts, etc. the show cause notice dated 31-3-2006 is time barred. In view of this, the Revenue s appeal is dismissed . In this case also I have find that the facts of this case are similar to the case of Krishna Engineering Works (supra) wherein the Tribunal has held since the interest demand pertains to period 16-9-2003 to 13-8-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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