TMI Blog2013 (12) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... he responsibility of paying differential duty is rest on the appellant - appellant intentionally withheld payment of differential duty for the subsequent period which clearly established that there was willful intention to evade payment of duty. Leviability of penalty and interest – Held that:- Following Union of India vs. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Payment of differential duty, whether before or after the show cause notice is issued, cannot alter the liability for penalty and the condition for which are clearly spelt out in Section 11AC of the Central Excise Act – Decided against Appellant. - Civil Miscellaneous Appeal No.1025 of 2008 and M.P.No.1 of 2008 - - - Dated:- 6-12-2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the appellant was making payment of such differential duty based on sale patties received from consignment agents, they had deliberately withheld payment for the subsequent period which clearly shows its willful intention to evade payment of duty. The appellant submitted its reply dated 14.12.2005, stating that show cause notice is barred by limitation and extended period cannot be invoked. Further, it was stated that non-declaration is not sufficient to invoke larger period but a positive misdeclaration is necessary. Further, it is stated that no penalty can be imposed when the duty has been paid prior to the show cause notice. The Original Authority considered the explanation offered by the appellant and after providing an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the appeal has been admitted on the following questions of law: "1. Whether on the facts and circumstances of the cases, the Tribunal is right in holding that larger period of limitation is applicable? 2. Whether larger period of limitation is invokable, in the absence of fraud, suppression of facts or mis-representation? 3. Whether penalty and interest are leviable when the duty has been paid before issue of show cause notice? 4. Whether the single member of the Tribunal can take a different view without following the Bench decisions of the Tribunals and the other decisions of the High Courts and also of Supreme Court?" 3. Mr.K.Jayachandran, the learned counsel appearing for the appellant while reiterating the contention raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are clearly spelt out in Section 11AC of the Central Excise Act. The Honourable Supreme Court pointed out that penalty under Section 11AC of the Central Excise Act, as the word suggest, 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. Therefore, the contention of the appellant that the duty was paid prior to issuance of show cause notice does not in any manner advance its case. The question that has to be considered is whether there is intention to evade payment of duty. The period which is subject matter of issue was 2001-02. The Enforcement Wing of the respondent Department visited the appellant's factory on 23.12.2003 i.e., nearly aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and they intentionally withheld payment of differential duty for the subsequent period which clearly established that there was willful intention to evade payment of duty. 7. In the light of the above discussion, the question of law raised by the appellant viz., whether penalty and interest are leviable when duty has been paid before issuance of show cause notice has to be necessarily answered against the appellant in the light of the judgment of the Supreme Court in Union of India vs. Rajasthan Spinning Weaving Mills [2009 (238) E.L.T. 3 (S.C.)]. As regards the contumacious conduct of the appellant in willfully evading payment of duty, we find no reason to interfere with the factual finding recorded by the Appellate Authority and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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