TMI Blog2015 (11) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases facts were, that the goods were cleared clandestinely without payment of duty, whereas fact of the present case is the goods cleared under cover of invoices. Therefore it is not a case of clandestine removal of goods; it is a case of delay in monthly payment of duty. Both the judgments are not applicable in the facts of the present case. In view of this position, I am of the considered view that lower authority neither should have issued any show cause notice nor should have imposed penalty. Therefore, impugned order is not maintainable and hence the same is set aside - Decided in favour of assessee. - Appeal No. E/384/11 - Final Order No. A/2030/2015-WZB(SMB) - Dated:- 3-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the month of July and August, 2007 involving duty of ₹ 6,87,714/-and 5,64,855/- respectively are held to be cleared without payment of duty and liable for confiscation and appellants are liable for imposition of penalty as proposed in the show cause notices dated 30/9/2008. The show cause notices were adjudicated by adjudication order dated 24/9/2010 wherein following order was passed. (i) I confirm the duty amounting to ₹ 6,87,714/- and ₹ 5,64,855/- being the total Cenvat duty including Edn. Cess and Secondary and Higher Secondary Edn. Cess for the month of July, 2007 and August 2007 respectively under Section 11A(2) of the Central Excise Act, 1944. Since, the assessee has paid the same on 15/10/2007 and 20/10/2007 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of monthly excise duty, which has been paid alongwith interest before issuance of show cause notice. The departments case is that since, during the defaulted period the appellant was required to pay all duty on consignment basis and they have not paid on consignment basis, duty was paid on monthly basis, therefore they are liable for penalty under Rule 25 read with Section 11AC. It is his submission that there is delay in monthly duty payment but duty alongwith interest was paid voluntarily and the same was intimated to the department. The department issued show cause notice only on the intimation given by the appellant and it was not detected by the department, therefore their case is squarely covered under sub section (2B) of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineers (P) Ltd. [2015(317) ELT 461(Mad)] (b) Commr. of C. Ex. Cus., Aurangabad Vs. R.R. Omerbhay Pvt. Ltd.[2011(269) ELT 46(Bom)] He submits that in view of the above judgments, Ld. Commissioner (Appeals) has correctly imposed penalty under Section 11AC, the same require to be maintained and appeal of the appellant is liable to be dismissed. 5. I have carefully considered the submissions made by both sides and perused the record. 6. The appellant admittedly delayed in making monthly payment of duty beyond the period of 30 days; however they have paid duty alonwith interest. The details of the clearances and payment of duty alongwith interest have been declared by the appellant in their monthly ER1 return. It is also note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11A. From the fact of the case that duty, which was not paid within stipulated time period, has been paid by the appellant on their own alongwith interest and the same has been declared in ER-1 return and informed separately vide letter dated 20/10/2007. The case of the appellant is squarely covered under sub section (2B) of Section 11AC. In view of this position, the department should not have issued any show cause notice on the appellant, consequently no penalty should not have been imposed either under Section 11AC or any other rule. As regard judgments relied upon the by the Ld. A.R. in case of Mefco Engineers (P) Ltd and R.R. Omerbhay Pvt. Ltd (supra) I find that in both the cases facts were, that the goods were cleared clandestinely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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