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TMI Blog2016 (9) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... s Andhra Pradesh State Housing Corporation Ltd (APSHCL) on payment of duty of Rs. 220/- per MT instead of Rs. 350/- Per MT in terms of Notification No.4/2006 as amended. The appellant was asked to pay the differential duty of Rs. 1,46,910/- (for 2007-08) and Rs. 1,32,420/- (for 2008-09) along with interest, which was paid up on 05-08-2009. 2. Show Cause Notice dated 18-10-2012 was issued to the appellant extended period proposing demand of differential duty of Rs. 2,79,330/- along with interest, appropriation of amounts already paid and also imposition of penalty under Section 11AC of the Act or Rule 25 of Central Excise Rules, 2002. Original adjudicating authority vide the order dated 30-04-2012 confirmed the demand along with interest, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediately by December 2008 itself in the absence of any Show cause notice. 5.5 Under the above mentioned situation, it is very apparent that there is a case involving genuine belief as to applicability of benevolent notification; however, when even a simple doubt arose thereon, we paid entire duty and interest immediately on 04-12-2008 & 08-12-2008 to prove our bonafide. 5.6 Thus, having complete knowledge before three years so, any attempt to invoke larger period as per first proviso to Section 11A of the Central Excise Act 1944 vide show cause notice dated 18-01-2012 for penalizing, shall totally be against the very scheme of statute and shall not be good in law at all. 5.7 It is very clear from the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty under Section 11AC of the Act. Appeal by Department to Commissioner (Appeals) was on limited issue of non-imposition of Sec.11AC penalty. Hence the issue involved in the resultant appeal by appellant is limited only to imposability or otherwise of Sec. 11AC penalty. 10. It is seen that the original adjudicating authority has analysed this issue is detail and has arrived at a reasoned finding that the Sec.11AC penalty is not imposable since as per the facts, the appellant has not committed any fraud, collusion etc. The operative portion of the original order is reproduced below for better understanding: "As regards proposal of penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there would be no application of the penalty provision in Section 11AC of the Central Excise Act, 1944, which would come into play only after an order is passed under Section 11A(2) of the Central Excise Act, 1944 with the finding that the escaped duty was the result of deception by the assessee by adopting one of the means as indicated in Section 11AC of the Central Excise Act, 1944. Since I am not holding that there is a presence one of the means as indicated in Section 11AC of the Central Excise Act, 1944, in my findings for demanding the duty, penalty under Section 11AC of the Central Excise Act, 1944, is not imposable in terms of the Honourable Apex Court s ruling in the case of Rajasthan Spinning Mills" 11. On the other hand, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be some positive act on the part of the party to establish either wilful mis-declaration or wilful suppression. When all facts are before the Department and a party in the belief that affixing of a label makes no difference does not make a declaration, then there would be no wilful mis-declaration or wilful suppression. If the Department felt that the party was not entitled to the benefit of the Notification, it was for the Department to immediately take up the contention that the benefit of the Notification was lost. In this case, as set out hereinabove, all facts were within the knowledge of the Department. Therefore, even if the ratio of Nizam Sugar Factory s case (supra) is applied, there is no justification for invoking the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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