TMI Blog2014 (12) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11AC. The appellant did not challenge the order of this Tribunal. Since the ingredients for confirmation of the duty liability, on invoking the extended period of limitation; and for imposing penalty under the provisions of Sections 11A and 11AC, respectively, are in pari materia, in our considered view, the conclusion/finding that the appellant had suppressed material facts while under-remitting the Excise duty, constitutes the generic integer for confirmation of penalty under Section 11AC. None of the decisions presented by the appellant expound a contrary ratio nor is any decision brought to our notice expounding the proposition that where confirmation of the liability to tax/duty is founded on a conclusion as to existence of ingredients which are in pari materia the ingredients for imposition of penalty as well, in a challenge to imposition of penalty alone (and when the confirmation of tax/duty has attained finality), the correctness of finding of suppression etc. on the basis of which the confirmation of tax/duty is recorded, is liable to be reconsidered. no error in the impugned order imposing penalty under Section 11AC of the Act, since the order of the appellate Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to penalty under Section 11AC apart from interest leviable under Section 11AB, after recording a categoric finding that extended period of limitation was rightly invoked since the appellant had suppressed material facts from Department and this conduct legitimises invocation of the extended period (para 6 of the appellate order). The appellate Commissioner however, deleted the penalty imposed on the Chairman of the appellant herein while confirming the penalty imposed on its Deputy Manager, by the primary authority. 5. This appeal was filed in 2004. In paragraph 8 and 10 of the memorandum of appeal (set out in Form No. E.A.-3 of the Rule 6) it is stated that the appeal is preferred against the penalty imposed under Section 11AC and that relief claimed in the appeal is for deletion of penalty imposed under Section 11AC. In the statement of facts set out in the memorandum of appeal however, it is broadly asserted that the appellant is aggrieved by non-consideration of its plea that in the facts and circumstances invocation of the extended period of limitation or imposition of penalty under Section 11AC of the Act, was wrong and illegal. Similarly, ground 1 of the Grounds of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated for our consideration by the order of remand. In view of the chronology of events mentioned above and in the light of the remand ordered by the Supreme Court, the singular issue that falls for our consideration, is whether the primary and appellate Authorities had erred in imposing penalty under Section 11AC on the appellant. The dispute is not as regards the quantum of penalty imposed. It is only as regards the validity of imposition per se. 10. Appellant contended that since the earlier order dated 24-3-2006 was set aside by the Supreme Court and matter remanded to this Tribunal, all issues presented in the appeal including validity of confirmation of the liability to Excise duty should be and are open for consideration by us. We are unable to accept this contention. Appellant alternatively contends that in adjudicating the validity of imposition of penalty (under Section 11AC) we are required to consider validity of invocation of the extended period of limitation for initiating proceedings against the appellant. For reasons to follow we are unable to accept this contention either. 11. The (impugned) order of the Commissioner (Appeals) clearly recorded the conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial guidance and mandate derived from the Apex Court judgment (supra), we apply the principles to the facts on the order of the Commissioner (Appeals) (impugned) clearly and categorically recorded a finding that the appellant suppressed material facts to the Department; that the extended period of limitation was thus rightly invoked; that the show cause notice is not hit by limitation period; and the liability to Duty was correctly assessed by the primary Authority after legitimately invoking the extended period of limitation. Since the relevant ingredients for such invocation stand established and concluded on analyses of the factual matrix on record. This finding is a finding on facts, of the appellant s conduct, legitimising invocation of the extended period (for initiation of proceedings), and this conclusion as to the appellant s conduct per se establishes the statutorily stipulated ingredients, for imposition of penalty under Section 11AC as well. Imposition of penalty under Section 11AC cannot therefore be gainfully impeached, in the appeal before us, particularly in the light of the decision of the Supreme Court reported in 2009 (238) E.L.T. 3 (S.C.). 15. On behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had suppressed material facts while under-remitting the Excise duty, constitutes the generic integer for confirmation of penalty under Section 11AC. None of the decisions presented by the appellant expound a contrary ratio nor is any decision brought to our notice expounding the proposition that where confirmation of the liability to tax/duty is founded on a conclusion as to existence of ingredients which are in pari materia the ingredients for imposition of penalty as well, in a challenge to imposition of penalty alone (and when the confirmation of tax/duty has attained finality), the correctness of finding of suppression etc. on the basis of which the confirmation of tax/duty is recorded, is liable to be reconsidered. 19. On the aforesaid analyses, we find no error in the impugned order imposing penalty under Section 11AC of the Act, since the order of the appellate Commissioner confirming levy of Excise duty, on invocation of the extended period of limitation and on the basis of the recorded finding that the appellant had suppressed relevant facts while short remitting duty, has become final. 20. The appeal fails and is dismissed, but in the circumstances witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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