TMI Blog2014 (12) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... aware about non-payment of the duty. In spite of this knowledge, they did not inform this fact to the department. Further, in the monthly ER-1 Returns, they misdeclared that they had actually discharged the duty liability. This conduct on the part of the appellant is a wilful misstatement of facts with an intent to evade payment of duty. Therefore, the provisions of Section 11AC are clearly attracted. Merely because the appellant discharged the duty liability along with interest prior to the issue of notice, the misconduct on the part of the appellant cannot be obliterated. As per the provisions of Section 11A(6), only on payment of duty, interest and penalty equal to 10% of such duty per month for which the default continued not exceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant failed to discharge excise duty liability for the months of June, 2010 and October, 2010 to April, 2011. These short payments in duty were made good by the appellant only during April, May, June, August and Sept, 2011 along with interest. These short payments in duty occurred due to bouncing of cheques issued by the appellant towards payment of duty for want of funds in their account. These cheques were returned to the appellant by the Bank. However, in the monthly ER-1 Returns filed by the appellant, they did not disclose these facts to the department. On the contrary, in the Returns filed, they had declared that they had discharged duty liability and also mentioned the GAR-7 challan Nos. under which they alleged to have pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they tried to mis-lead the department by declaring in the ER-1 Returns that they had discharged the duty liability by giving details of fictitious duty paying challan. This conduct of the appellant clearly reveals the guilt. It was not a case that the appellant brought it to the notice of the department about short payment of duty on their own. It was after the department noticed the short payments and on insistence by the department, they discharged the duty liability along with interest. Accordingly, he contends that the appellant should be put to terms. 5. We have carefully considered the submissions made by both sides. 5.1 The short question for decision is whether the penalty is imposable on the appellant for the delay in paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of waiving of penalty would not arise at all. 6. In view of the above factual position, we are of the considered view that the appellant had not made out a case for complete waiver of penalty adjudged against the appellant. Therefore, we direct the main appellant M/s. SND Iron Pvt. Ltd. to make a pre-deposit of 25% of the penalty adjudged against them within a period of eight weeks and report compliance by 14-4-2014. On such compliance, pre-deposit of the balance amount of penalties adjudged against the main appellant and the penalties imposed on the Directors of the appellant firm shall stand waived and recovery thereof stayed during the pendency of the appeals. (Dictated and pronounced in Court) - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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