9911796707
TMI Blog2011 (7) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... duty against the appellant under Section 11A(2) of the Central Excise Act for the period from February 1998 to September 2000 and had also imposed equal amount of penalty on them under Section 11AC of the Act. The adjudicating authority invoked the extended period of limitation for demanding the duty amount on the ground that the appellant had suppressed material facts with intent to evade payment of duty. The order of adjudication eventually came to be upheld by the Commissioner (Appeals). The present appeal of the assessee is against the appellate Commissioner's order. 2. Today, there is no representation for the appellant despite notice, nor any request for adjournment. The record of proceedings indicates that there was no represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period of limitation under the proviso to Section 11A(1) of the Act for recovery of the duty and also invoked Section 11AC of the Act for imposing penalty. Section 11AB of the Act was invoked on the same ground for levy of interest on duty. Separate penalties were also proposed under Rules 173Q, 209 and 226 of the Central Excise Rules, 1944. 4. The case of the Revenue as made out in the show-cause notice was upheld by the adjudicating authority and the first appellate authority. In the present appeal filed by the assessee, one of the grievances raised by the appellant is that an affidavit filed by Mr. Yalgude (Sectional Engineer) after giving statement dated 25/07/2000 was rejected by the Commissioner (Appeals). It is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower appellate authority. Obviously, there was no voluntary deposit of duty by the appellant prior to 17/06/2002. It is not in dispute that the appellant in their RT-12 returns did not disclose the clearance of the 88 pipes in question. That these pipes were cleared without payment of duty is a fact admitted by the appellant under Section 14 of the Central Excise Act. That no amount of duty was paid on these goods till they were compelled to pre-deposit Rs. 6.5 lakhs under Section 35F of the Central Excise Act is a fact evident from the records. Therefore, we are inclined to accept the concurrent findings recorded by the lower authorities regarding suppression of fact by the appellant with intent to evade payment of duty. The extended pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to learned SDR, the appellant is liable to pay penalty equal to the entire amount duty demanded from them inasmuch as the Revenue's allegation of suppression of facts with intent to evade payment of duty stands established for the entire period of dispute including the period coming within the normal period of limitation prescribed under Section 11A(1). In this connection, learned SDR has particularly referred to para 17 to 19 of the apex court's judgment in Rajasthan Spinning & Weaving Mills (supra). Unfortunately, today, there is nobody to contest these arguments of the SDR. In the case of Dharmendra Textile Processors, the Hon'ble Supreme Court held that, where any of the grounds laid down under Section 11AC for a penalty was esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A(2) there would be no application of the penalty provision in Section 11AC of the Act. On behalf of the assessees it was also submitted that Sections 11A and 11AC not only operate in different fields but the two provisions are also separated by time. The penalty provision of Section 11AC would come into play only after an order is passed under Section 11A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting a means as indicated in Section 11AC. 19. From the aforesaid discussion it is clear that penalty under Section 11AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that Section 11AC was applicable only to cases where the proviso to Section 11A(1) was invoked for recovery of duty, it would not have been necessary for the legislature to frame the text of Section 11AC in the manner it did. It would, therefore, appear that Section 11AC is not a provision exclusively applicable to cases in which the proviso to Section 11A(1) is invoked. It could also be applied to a case in which duty is demanded for the normal period of limitation if any of the grounds laid down in the body of Section 11AC is established against the assessee. What appears from the provisions of law seems to be emerging from para 18 of the apex court's judgment in Rajasthan Spinning & Weaving Mills (supra). In that case, the apex court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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