TMI Blog2010 (11) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation required to be given by them in the returns and the facts incorporated in the statement of facts were contested - extended period has been rightly invoked. Option to the appellant to pay 25% of the duty towards penalty subject to the condition that duty, interest and penalty are deposited within 30 days of the order - Held that: - duty and interest have already been deposited and if the appellants deposit 25% of the duty demanded towards penalty within 30 days of the receipt of this order, that will be in full discharge of the penalty imposed u/s 11AC of CEA, 1944 - Failure to deposit this amount within 30 days from the date of receipt of this order will result in enhancement of penalty to the extent of 100% of duty demanded. Appeal dismissed - decided against appellant. - E/11-12/2008 - Final Order Nos. 1337-1338/2010 - Dated:- 16-11-2010 - Shri M.V. Ravindran, Member (J) and B.S.V. Murthy, Member (T) Shri Rajesh Chander Kumar, Advocate, for the Appellant. Shri K.S. Chandrashekar, JDR, for the Respondent. ORDER The appellant is engaged in the manufacture of textile machinery and was availing the benefit of exemption Notification No. 8/2003-C.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the duty can be imposed when the amount of duty payable has been determined under sub-section (2B) of Section 11A and the ingredients required for penalty under Section 11AC were satisfied. In view of the decision of the Tribunal cited by him and in the absence of determination of duty liability under Section 11A(2B) of Central Excise Act, 1944, he submits that imposition of penalty under Section 11AC is required to be set aside. We find that in this case, the facts are not comparable to the facts of the case in the R.R. Oomerbhoy Pvt. Ltd case (supra). In the case of R.R. Oomerbhoy Pvt. Ltd., the duty was paid by the assessee prior to the issuance of show cause notice and it was the claim of the appellant in that case that the payment was made under sub-section (2B) of Section 11A of the Central Excise Act, 1944 and the contention of the Department was that the said section was not applicable since the payment was not made by the assessee on their own but made at the instance of the departmental officers. In that case, the appellant made the payment of duty and intimated the Proper officer. In that case, the show cause notice was issued after payment of duty by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a situation, extended period cannot be invoked. Before we consider the decisions cited by the learned Advocate, it would be appropriate to reproduce the relevant extracts from the relevant paragraph in the show cause notice. From the above, it appears that M/s. TSI have not maintained the registers for accounting the transactions with regard to receipt, purchase, storage, sales and delivery of the goods and have thereby contravened the provisions of Rules 3, 9 and 11 of the Cenvat Credit Rules 2002, read with Section 11A of the Central Excise Act, 1944 and the provisions of Notification No. 8/2003-C.E. dated 1-4-2003 (as amended). It further appears that the above fact was not reflected by M/s. TSI in the periodical returns filed by them with the Department and the same came to the knowledge of the Department only during the course of the audit of the records of the said unit for the period April, 2001 to August, 2005 and further investigation by the Headquarters Preventive unit. Therefore, the extended period of time under the proviso to Section 11A(1) is invokable in the case. 6. From the extract reproduced above, it can be seen that the Department has clearly indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot incorporated in the returns have been specified and it has also been stated that extended period is invocable. In the case of Pushpam Pharmaceuticals Company v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.), the Hon ble Supreme Court had held that extended period could not be invoked when the ground taken was that if the turnover of the two items, i.e. classifiable under item 68 and under Tariff Entry 14E were clubbed, it exceeded ₹ 5 lakhs. It appears that in this case, it was basically the question of addition of value of clearances given separately and from the facts indicated, it is not clear whether there was an allegation that the value of clearances of both the items were available or not. In the case of Tamil Nadu Housing Board v. CCE, Madras - 1994 (74) E.L.T. 9 (S.C.), the appellant was engaged in the manufacture of concrete as well as wood workings. The wood frames, shutters etc. manufactured in the Wood Working Unit were not sold but fixed in the buildings constructed by the appellant. The Hon ble Supreme Court observed as follows : The appellant is a statutory body. It had taken out licence for concrete as it was being sold to outsiders. No licence was taken o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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