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Arbes Tools Pvt. Ltd. Versus Commissioner of Central Excise, Mumbai-II

2016 (2) TMI 66 - CESTAT MUMBAI

Failure to pay the duty on time - Penalty under Section 11AC - Held that:- A perusal of invoice No.16 dated 8.6.2005 issued by the appellant clearly shows that though the duty has been charged, but the same was not deposited. Further, on the invoice, it is clearly mentioned that no sales tax is charged as the goods are being transferred to their own unit No.II which is situated in Andheri (East) and it appears that the goods were intended to be transferred to their own unit, but inadvertently in .....

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be determined by the excise officer after giving sufficient opportunity to the appellant as required in Section 11A(10), which has not been done in this case and as per Section 11A(b), it is provided that the person chargeable to duty may, before service of notice under clause (a), pay on the basis of (i) his own ascertainment of such duty or, (ii) the duty ascertained by the Central Excise officer and if the person pays the duty along with interest payable thereon under Section 11AA, then as p .....

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t (AR) ORDER This appeal is directed against order-in-appeal No. YDB/201M.II/2010 dated 20.4.2010 passed by Commissioner of Central Excise (Appeals), Mumbai-II, who upheld the order-in-original dated 30.12.2008. 2. Briefly the facts of the case are that the appellant is engaged in the manufacture of encapsulation machinery parts and accessories falling under Chapter Heading No. 84798970 and 84799040 respectively of the Central Excise Tariff Act, 1985. The appellant vide invoice No.16 dated 8.6.2 .....

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27.11.2007. Thereafter the Assistant Commissioner issued a show cause notice and imposed penalty under Section 11AC of the Central Excise Act read with Rule 25 of the Central Excise Rules, 2002 and the appeal filed before the Commissioner (Appeals) was also dismissed. Hence the present appeal. 3. The learned counsel for the appellant submitted that the perusal of the show cause notice shows that the consignment was cleared to the appellant s own unit No.II under valid invoice No.16 dated 8.6.20 .....

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this amount of duty is admissible as cenvat credit to their unit II and there is no gain to the appellant nor any loss to the exchequer and, therefore, the penalty imposed by the adjudicating authority under Section 11AC of the Central Excise Act, 1944 is wrong and illegal as held in number of decisions delivered by the Tribunal and the High Court. He also cited the following judgments in support of his submission that no penalty can be imposed in such circumstances as there is no fraud, wilful .....

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voice No.16 dated 8.6.2005 issued by the appellant clearly shows that though the duty has been charged, but the same was not deposited. Further, on the invoice, it is clearly mentioned that no sales tax is charged as the goods are being transferred to their own unit No.II which is situated in Andheri (East) and it appears that the goods were intended to be transferred to their own unit, but inadvertently instead of issuing challan, the appellant has wrongly issued the invoice. It is also a fact .....

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