TMI Blog2015 (11) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. In the present case the audit was conducted in the months of September - October, 2009 and on pointing out the discrepancy of valuation, the appellant suo moto paid the duty along with interest. Case of the appellant is squarely covered by Section 11A(2B), according to which the appellant should not have been issued any show-cause notice, as a result no penalty could have been imposed. I also agree with the learned Counsel of the appellant that show-cause notice has not alleged that the omission and commission of the appellant falls under the 4 corner of the ingredients of provision to Section 11A such as suppression of fact, mis-declaration, fraud, collusion, etc. with intent to evade payment of duty. - Decided in favour of assessee. - Appeal no. E/872/12 - - - Dated:- 10-3-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Ms. Anjali Hirawat, Advocate For the Respondent : Shri Ashutosh Nath, Assistant Commissioner (A.R.) ORDER Per: Ramesh Nair The appeal is directed against Order-in-Appeal No. BC/356/MUM-III/2011-12 dated 29.02.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III, wherein the learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were re-packed and cleared on payment of duty. Since the transactions were between the unit of the same company and the consignee unit was availing the CENVAT credit, it is a clear case of Revenue neutrality therefore, the malafide intention is not established. For this reason also, the penalty under Section 11AC should not be imposed. She further submits that in the show-cause notice, there is no allegation as regard ingredient of proviso to Section 11A such as suppression of fact, mis-declaration, fraud, collusion, etc. with intent to evade payment of duty. Therefore for this reason also the penalty under Section 11AC cannot be imposed. In this support she relied upon a judgement in the case of Amrit Foods Vs. CCE, U.P. - 2005 (190) ELT 433 (SC) wherein the Hon'ble Supreme Court held that since neither show-cause notice nor order of Commissioner specified which particular clause of Rule 173Q of erstwhile Central Excise Rules, 1944 had been allegedly contravened by the appellant, penalty can not be imposed. She also placed reliance on the judgements in the case of Akash Optifibre Ltd. Vs. Commissioner of Central Excise, Jaipur - 2010 (261) ELT 404 (Tri.-Del.) , Patel Alloys S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in July, 2007 and the appellant has calculated the cost of manufacturing on the basis of data for the financial year, 2006-2007 which is the correct procedure. However the appellant was supposed pay the differential duty if it arise due to enhancement of the cost on actual basis which cannot be worked out before completion of the financial year 2007-2008. In such procedure the appellant can pay the differential duty only some- where-in September - October, 2009 when the Balance Sheet is audited and annual report is submitted to the Income Tax department. In the present case the audit was conducted in the months of September - October, 2009 and on pointing out the discrepancy of valuation, the appellant suo moto paid the duty along with interest. In view of this fact, I do not find any malafide on the part of the appellant and I am of the view that the case is squarely covered by the provision of Section 11A(2B) which is reproduced below:- SECTION [11A.................................................................. (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n The Commissioner of Central Excise, Aurangabad v. M/s. Rucha Engineering Pvt. Ltd., (First Appeal No. 42 of 2007) that was relied upon by the Tribunal for dismissing the Revenues appeal took the view that there would be no application of Section 11A (2B) or Section 11AB where differential duty was paid by the assessee as soon as it came to learn about the upward revision of prices of goods sold earlier. In M/s. Rucha Engineering the High Court observed as follows: It is evident that the Section (11AB) comes into play if the duty paid/levied is short. Both, the Commissioner (Appeals) and the CESTAT have observed that the Assessee paid the duty on its own accord immediately when the revised rates became known to them from their customers. The differential duty was due at that time i.e. when the revised rates applicable with retrospective effect were learnt by the Assessee, which was much after the clearance of the goods and therefore, question of payment of interest does not arise as the duty was paid as soon as it was learnt that it was payable. Finding that provisions of Section 11A (2) and 11A (2B) were not applicable as the situation occurred in the instant, case was qui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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