TMI Blog2014 (9) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Act or Rules with intent to evade payment of duty. It is the case of the Revenue that extended period is invokable once the disputed amount has been paid whereas appellant is of the view that it is not a case of invocation of extended period as no penalty under Section 11AC of the Central Excise Act, 1944 has been imposed upon the appellant by the adjudicating authority in the remand proceedings. No penalty under Section 11AC of the Central Excise Act, 1944 has been imposed upon the appellant, therefore, it has to be held that elements of fraud, suppression or mis-statement etc., with intention to evade duty are, not available as appellant on their own paid the differential duty and intimated the Department. First appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra Pradesh Electricity Board during the period involved and a royalty @ 6.5% on material cost charged by the appellant was not included in the assessable value. That appellant voluntarily paid differential duty on 22-12-2000 and 17-5-2001. That Department started inquiring into the case only as per statement dated 2-8-2001 of Shri Bindesh Indravadan Shah and Shri Nityanand N. Dhokakia, Excise Officer and the General Manager (Co-ordination) of the appellant. That Commissioner (Appeals) in Para 10 of the OIA dated 19-11-2009 has wrongly mentioned that amounts were paid after being pointed out by the Department. It was his case that for the period involved interest if any can be demanded only under the unamended Section 11AB of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase records. In this appeal the disputed amount of differential duty was pertaining to the period prior to 11-5-2001 when unamended Section 11AB was applicable. Sub-section (2) of Section 11AB after amendment and effective from 11-5-2001 also had a clause that nothing contained in the amended Section will apply to cases where duty had become payable or ought to have been paid before the date on which the Finance Bill receives the assent of the President. Hon ble High Court of Gujarat in the case of Exotic Associates v. CCE (supra) has held in Para-18, reproduced below, that interest for the period prior to 11-5-2001 can be recovered only under the unamended Section 11AB and not under the amended Section 11AB of the Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity to the other side, in view of Dharamendra Textile Processors case [2008-TIOL-192-SC-CX-LB = 2008 (231) E.L.T. 3 (S.C.)]. A clarificatory order dated 20-4-2009 was also issued by this Bench under Order No. M/515/WZB/AHD/2009 (Appeal No. E/1723/2005) that only the issue of interest on duty demanded is remanded back to the adjudicating authority. Under OIO No. 41/JC/2009(PSR), dated 31-8-2009 adjudicating authority confirmed interest under Section 11AB of the Central Excise Act, 1944 and no penalty under Section 11AC of the Central Excise Act, 1944 was imposed upon the appellant. 4.2 In view of the above facts available on record no penalty under Section 11AC of the Central Excise Act, 1944 has been imposed upon the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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