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2016 (7) TMI 350 - CESTAT NEW DELHI

2016 (7) TMI 350 - CESTAT NEW DELHI - 2016 (341) E.L.T. 396 (Tri. - Del.) - Recovery of erroneous refund - period of limitation for levy of penalty - proceedings were initiated for recovery/appropriation of the said amount and for imposing penalty under Section 11AC - during the transitory period of 2006-2007 when the tyres were brought under MRP based assessment they have cleared tyres on payment of duty under Section 4. The refund relatable to discounts were also claimed which was sanctioned b .....

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s and payment of the full amount with interest by the appellants, the show cause notice issued more than two years after such payment is without merit. The notice itself is very cryptic without any details of basis for issuing demand for already paid amount and for proposing equal penalty under Section 11AC. - Levy of penalty set aside. - Decided in favor of assessee. - Excise Appeal No. 51185 of 2016 (SM) - Final Order No. 52275/2016 - Dated:- 30-6-2016 - SHRI B. RAVICHANDRAN, MEMBER (TECHN .....

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bility is determined based on MRP of the goods. Certain enquiries were conducted by the officers of DGCEI in April 2009. It was found that the appellants were not following properly the MRP based assessment in respect of certain wrapped tyres cleared during the year 2006-2007. Further enquiries were conducted, however, there was no differential duty or demand proceedings consequent of such enquiry. That the assessment has to be done under Section 4A has been accepted by the appellants. However, .....

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ated the investigating officers of DGCEI, Indore about such payment and requested for closure of the case under Section 11A (2B) of the Central Excise Act, 1944. On 19/5/2011 the Jurisdictional Assistant Commissioner intimated the appellants about communication on such payment received from DGCEI, Indore and further requested for a chart indicating the calculation. Thereafter, the present proceedings were initiated for recovery/appropriation of the said amount and for imposing penalty under Sect .....

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under Section 4. The refund relatable to discounts were also claimed which was sanctioned by the Department. Later, when the officers of DGCEI conducted certain verification it was admitted that during 2006-2007 some of their tyres were cleared in wrapped condition and should have suffered duty under Section 4A instead of Section 4. There was no duty difference or demand from the Department due to such change in provisions of assessment. However, the refund claimed and sanctioned in terms of Se .....

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for imposing penalty of equivalent amount on the appellant. 3. The learned AR submitted that the appellants did not follow the correct assessment procedure and it is only after the enquiry by DGCEI the correct system of assessment was recognized and followed by the appellants. The correct assessment under Section 4A will make the refund claimed by the appellant earlier as erroneous and, hence, the same is correctly demanded by the lower Authorities. Since the assessment practice was rectified on .....

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