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2016 (2) TMI 285 - CESTAT MUMBAI

2016 (2) TMI 285 - CESTAT MUMBAI - TMI - Demand of of interest and penalty - Extended period of limitation invoked - Held that:- 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 unpaid duty before issuance of show cause notice under sub-se .....

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e already held that time for issuing such a notice was one year, which period had already expired.

Accepting the stand of the Department that even in such a case once the payment of duty is made, interest liability would follow would bring about an incongruent situation. The recovery of the unpaid or short paid duty would become time-barred. If the manufacturer does not pay it voluntarily, it would not be possible for the Department to recover the same. But if he does it voluntarily d .....

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DER Per: M.V. Ravindran This appeal is directed against order-in-appeal AT/831/RGD/2006 dated 5.2.2007. 2. Heard both sides and perused the records. 3. On perusal of the records, we find that the issue involved in this appeal is regarding the challenge by appellant to the findings that they are liable to discharge the interest and penalty on the inputs/capital goods cleared during the period August 2001 to November 01. We find from the records that appellant's factory was audited by the Audi .....

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of interest and penalty. We find the main ground taken by the appellant is that the differential duty demand which has been discharged by the appellant is itself not required to be done so as show-cause notice dated 12th May 2006 is blatantly time barred and not invoking any of the ingredients which would indicate that the appellant had suppressed the facts from the department. On scrutiny of the said show-cause notice we find it so. In the absence of any allegation that there was mis-statement/ .....

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is correctly imposed by stating that the appellant being in an organized sector, should have known the correct provisions of law. 5. We find that the arguments put forth by learned D.R. will not carry their case any further as the show-cause notice dated 12.05.2006 is demanding and seeking to appropriate differential duty which was payable by the appellant during the period 2001-2002 and 2002-03. Similar issue came before the Hon'ble High Court of Gujarat in the case of CCE v. Gujarat Narma .....

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ly paid duty even before issuance of show cause notice. When Explanation-2 provides that said provision would not apply in case of fraud, collusion, wilful misstatement, suppression and intention to evade duty, it clearly means that sub-section (2B) is applicable where the normal period of limitation of 1 year is provided. 11. In the present case, when the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Comm .....

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