TMI Blog2015 (9) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation would not survive. Hence, the demand of interest and imposition of penalty would also not maintainable. - demand of interest and imposition of penalty are not warranted. Accordingly, the same are set aside. - Decided in favour of Assessee. - Appeal No. : E/689/2008 - ORDER No. A/10539 / 2015 - Dated:- 16-2-2015 - Mr. P.K. Das, J. For The Appellant : Non For The Respondent : Shri Alok Srivastava, Authorised Representative Per : Mr.P.K. Das, The appellant filed this appeal against the demand of interest and imposition of penalty. 2. The relevant facts of this case, in brief, are that the appellants were engaged in the manufacture of Fertilizer, Caprolactum etc. The appellant had cleared the goods to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, the Commissioner (Appeal) upheld the adjudication order except, penalty under section 11AC of the said Act was set aside and the quantum of penalty under Rule 25 of the Central Excise Rule 2002 was reduced to ₹ 50,000/-. 2. None appears on behalf of the appellant. The Learned Advocate on behalf of the appellant by written submission stated that the Commissioner (Appeal) set aside the penalty under Section 11AC holding that there was no suppression of fact with intent to evade payment of duty. The demand of duty for the extended period of limitation would not survive. The appellant already voluntarily paid duty and therefore demand of interest and penalty would be set aside. He relied upon the decision of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant portion of the finding of the Commissioner (Appeals) are as under : However, I find that the charge that the Appellants had not revised the assessable vale in terms of CAS4 certificate immediately on receipt of CAS4 certificate on 8.5.2005 with the intention to evade duty has not been substantiated with any cogent evidence. The clearance of the subject goods on the estimated value of ₹ 57,321/- pr MT and payment of differential duty on tentatively raised value of ₹ 66,830/- per MT were made under valid central excise invoice and were shown in the periodical returns and the entire exercise was revenue neutral as the duty payable on the impugned goods was available to their Kosamba Unit as cenvat credit, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case which is revenue neutral . Moreover, there is also no material on record from which it could be inferred or established that that duty of excise was not levied or paid by reason of any fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or the Rules made there under with intent to evade payment of duty. In the absence of any cogent evidence, the mistake cannot be attributable to intentional mistake to evade payment of duty also keeping in view the fact that the appellant are a Joint Sector Undertaking promoted and controlled by Government of Gujarat. Therefore, I am of the view that for the subsequent payment of differential duty of ₹ 47,10,554/- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order-in-original, to our mind the respondent was not liable to pay even the basic duty. But for the respondent voluntarily making payment of such duty short-paid, it was not open for the Department to recover the same under sub-section (1) of Section 11A of the Act. In absence of any such voluntary payment, recovery of the unpaid duty would not have been possible. In that view of the matter, we do not find the case would fall under sub-section (2B) of Section 11A of the Act. Sub-section (2B) of Section 11A of the Act applies in a case where there is voluntary payment of unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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