TMI Blog2016 (6) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the assessee. In the present case, though the non payment was pointed out by the department but no suppression of fact, mis-declaration, collusion, fraud etc. exist in the case for the reason that M/s. MRBBIPL have issued valid invoice for removal of capital goods. Therefore neither show cause should have been issued nor any charges of the show cause notice should have been confirmed. As per above discussion and the clear legal provision under sub-section (2B) of Section 11A, the confiscation of the goods is not legal and correct. Therefore the impugned order is set aside and appeal is allowed in favour of assessee. - Appeal No. E/291/2011 - A/87211/16/SMB - Dated:- 11-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demption of confiscated capital goods on payment of redemption fine of ₹ 13,00,000/- under Section 34 of the Central Excise Act, 1944. Being aggrieved by the Order-in-Original dt. 30.6.2010, the appellant M/s. ITC Ltd. filed appeal before the Commissioner (Appeals), who vide impugned order upheld the Order-in-Original and rejected the appeal. Therefore the appellant is before me. 3. Shri B. Venugopal Ld. Counsel appearing for the appellant, submits that M/s. MRBBIPL did not pay duty at the time of clearance of the goods but on pointing out by the department, the entire duty amount along with interest was paid by them on 12.12.2007 i.e. almost within three months from the clearance of the goods. He submits that M/s. MRBBIPL have cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Rules 2002. Therefore on the ground that the buyer is a bona fide buyer and the appellant though paid duty to M/s. MRBBIPL but the facts remain that the goods were cleared without payment of duty, therefore the goods are liable for confiscation. He placed reliance on the Tribunal decision in the case of Omega Enterprises Vs. Collector of Customs, Bombay 2001 (137) ELT 1120 (Tri.-Del.) 5. I have carefully considered the submissions made by both the sides. The issue to be decided by me is whether in the facts and circumstances of the case that M/s. MRBBIPL has paid duty and interest within three months from the date of clearance of the goods though on pointing out by the department whether the show cause notice could have been is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation 1 . -Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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