TMI Blog2014 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in that situation, it cannot be said that the assessee was having an intention to suppress the facts. Therefore, the facts of suppression are not proved as the show-cause notice itself alleges that draw back has been taken wrongly. as per the Section 114A of the Customs Act, 1962, penalty can be imposed on account of non-payment, short payment or erroneously refunded duty but in this case duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are that the main appellant is manufacturer of De-Oiled Cake and an exporter. To manufacture the said De-oiled Cake, they procure Hexane gas without payment of duty. After exportation of the goods, they claimed duty draw back available on the export goods. The claim was sanctioned. Later-on, it was revealed that the appellants have procured the Hexane gas without payment of duty and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an intention to take double benefit. As the appellants have already paid the duty draw back claim along with interest before the issuance of the show-cause notice therefore, penalty is not imposable on them. As show-cause notice itself alleges that they have claimed draw back wrongly. He further submits that the penalty on the appellant is not imposable under Section 114A as there is no dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for their act for availing draw back which they were not entitled to. It is further submitted that the act of appellants of the mis-declaration of fact to avail the drawback and without bringing the same to the notice of the department, proves suppression of facts. Therefore, the impugned order is to be upheld. 6. Considered the submissions made by both the sides. 7. On perusal of the show-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Chowhan Exports Ltd. (supra), penalty under Section 114A of the Customs Act, is not imposable on the main appellant. 7.1 Further, I find that in the show-cause notice there is no proposal for confiscation of the impugned goods. Therefore, penalty under Section 114(iii) is not imposable. 8. With these observations, I hold that the penalties on both the appellants are not imposable. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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