TMI Blog2015 (7) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression of facts by the appellants with deliberate intention to evade duty. By respectfully following the decisions cited (2003 (9) TMI 625 - CESTAT, BANGALORE), [2011 (1) TMI 746 - KARNATAKA HIGH COURT] and [2010 (8) TMI 765 - CESTAT, NEW DELHI] while upholding appropriation of demand and interest, I set aside Section 11AC penalty in respect of appellant M/s.Aswin Textiles Pvt. Ltd. - As regards the co-noticee, original penalty of ₹ 48 lakhs imposed by the adjudicating authority was reduced to ₹ 1 lakh by the LAA. After considering the merits of the case, I do not find any merit for full waiver of penalty. Accordingly the reduced penalty of ₹ 1 lakh imposed on the co-noticee is upheld - Decided partly in favour of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriated the interest amount and imposed equivalent penalty under Section 11AC and also imposed equivalent penalty on the co-noticee K.Palanisamy under Rule 26 of CER. The Commissioner (Appeals) upheld the demand but reduced the penalty imposed on the second appellant from ₹ 48 lakhs to ₹ 1 lakh. Hence the present appeals. 4. Ld. Consultant representing for the main appellant submits that their factory is located at Dharapuram and their Head office is located at Tiruppur and all the import and export clearances and payment of duties were handled at their head office. The capital goods are received in their unit at Tarapuram. He further submits that in the Bill of Entries cleared under the EPCG licence, it is clearly indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, extended period of limitation is not invocable in this case and no penalty is imposable as they have duly complied with the report. The investigation did not led to any new facts or suppression as they have clearly admitted the mistake at the time of audit itself. Imposition of penalty is not warranted as they have already paid duty and interest as per audit objection. He relied on the following citations :- (i) Hindustan Lever Ltd. Vs CCE Cochin 2004 (167) ELT 433 (Tri.-Bang.) (ii) CCE Bangalore Vs Geneva Fine Punch Enclosures Ltd. 2011 (267) ELT 481 (Kar.) (iii) Panasonic AVC Networks India Co. Ltd. 2012 (280) ELT 297 (Tri.-Del.) (iv) CCE Vs Guarniflon India Pvt. Ltd. 2013 (293) ELT 703 (Tri.-Ahmd.) 5. On the other ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount on 31.1.2004 immediately on receipt of audit objection and also paid the entire interest amount of ₹ 6,20,739/- on 20.2.2004. Therefore, it is evident from the above facts that the appellants promptly complied the audit objection. Whereas a SCN dt. 30.10.2006 issued by the Headquarters (Preventive) on the same issue which was detected by the audit. Apparently, the SCN was issued for imposition of penalty for which Section 11AC has been invoked. I find that audit detected the case on 12.1.2004 and appellants also admitted the audit objection before the officers pleading it is a genuine mistake. 7. It is relevant to see that the capital goods were cleared under EPCG scheme and even though no CVD is payable the Bill of Entry cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) are reproduced as under :- 5. As it is clear from Section 11-A after a notice is issued under Section 11(A)(C), the assessee has a right to make a representation contesting the claim. It is, thereafter, under Section 11(A)(2) the Central Excise Officer after considering the representation, if any, made by the person on whom notice is served, determining the amount of duty of excise due from such person and thereupon such person shall pay the amount so determined. Section 11A(C) makes it clear that the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A. 6. Therefore, the determination of liability to pay duty is a condition precedent for imposing penalty. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions from both sides and perused the records. No doubt, the appellants are not eligible to take credit of special additional duties at 4% levied under Section 3(5) of the Customs Tariff Act, 1975. The submission on behalf of the appellants was that in view of nomenclature of the levy of additional duties in lieu of sales tax and local levies being additional duties they have taken credit bona fidely as they believed that all additional duties were eligible as credit. The submission deserves to be accepted. Further, as submitted by them, details of credit taken were furnished by them in the returns submitted by them. This is a fit case that the Department should have refrained from issuing show cause notice in terms of Section 11A (2B) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
