TMI Blog2014 (11) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... d stand attracted on the levy of interest on delayed payment of duty only when excise duty was not levied or paid or short-levied or short paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty. Thus, when the explanation given by the assessee is found to be bona fide and when the action of the assessee did not lack bona fide and when there being no intention to evade payment of duty, the Tribunal rightly set aside the payment of interest and penalty. In such circumstances, going by the provisions of the said Act and the facts found by the Tribunal, we have no hesita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee by challan dated 2-12-1997 should not be confirmed; why a penalty should not be imposed under Rule 9(2), 173Q of the Central Excise Rules, 1944 and Section 11AC of the Central Excise Act, 1944 and why interest under Section 11AB should not be charged. (iii) The assessee submitted their reply contending that they have received the technical know-how fee from M/s. Maruti Udyog Limited for development of their Carburetors in two instalments and the amount so received as technical charges was transferred to Mikuin Shoka Corporation, Japan, their technical collaborator and the assessee acted only as a conduit between Maruti Udyog Ltd. and the Japanese Company, without any monetary gain/pecuniary advantage flowing to them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity did not accept the case of the assessee and by order dated 18-1-2000 rejected the appeal. Aggrieved by the same, the assessee preferred an appeal before the Tribunal and the Tribunal by order dated 30-4-2007 accepted the case of the assessee and pointed out that the assessee can hardly have a case against the demand of duty on the amortized technical know-how fee, which required to be included in the assessable value of the goods and the demand having been honoured much prior to the issuance of the show cause notice, placing reliance upon the decision of the Hon ble Supreme Court in the case of Commissioner v. Rashtriya Ispat Nigam Ltd. reported in 2004 (163) E.L.T. A53 (S.C.) no penalty could be imposed under Section 11AC of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppressing the fact of receipt of the amount of know-how charges, since, whatever duty they pay on the said amount will be availed as Modvat Credit by the buyer of the goods and consequently reimbursed to them and there is no mala fide intention on their part and at best, it could be considered as inaction due to ignorance on their part. This aspect of the matter was not taken into consideration by the Original Authority as well as the First Appellate Authority. In fact, the First Appellate Authority without assigning any reason, merely stated that the plea raised by the appellant is not acceptable, since they have now shown any documentary evidence to support their plea that they have not corresponded with the department seeking clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the provisions contained in sub-section (2) of section 11A, till the date of payment of such duty. (2) For the removal of doubts, it is hereby declared that the provisions of sub-section (1) shall not apply to cases where the duty became payable before the date on which the Finance (No. 2) Bill, 1996 receives the assent of the President. Explanation I - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation II - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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