TMI Blog2017 (2) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in form of raising debit notes, recovery of sales tax and raising self invoices without discharging duty thereon. These actions have never been disclosed to the Revenue Authorities. Hence, there is definitive element of suppression - the extended period has rightly being invoked for demanding the Central Excise Duty. Penalty - Held that: - Since there was suppression of vital facts and filing of incorrect declaration under Rule 173B for wrongly availing the benefit of exemption 67/95-CE, the penalty under Section 11AC has been correctly imposed - As for the penalty under Rule 9(2) and Rule 173Q of Central Excise Rules, 1944 and Rule 25 of the Central Excise Rules, 2000, we find force in the contention of the appellants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 67/95. 3. The demand of ₹ 3,86,080/- was confirmed by the Adjudicating Authority along with interest and penalties of ₹ 3,86,080/- under Section 11AC and ₹ 50,000/- under Section 173Q of Central Excise Rule, 1944 were imposed. The appellants went in appeal. The ld. Commissioner (Appeals) upheld the order of the Adjudicating Authority, aggrieved by which the appellants are before us. 4. The Ld. Advocate for the appellants submits that the issue is otherwise covered by the decision of Tribunal in the case of M/s BPL Electronics -1994 (71) E.L.T. 801 (Tri.). He submits that the case was made out on the basis of audit of records in 2001 after which clarification was given on 21.08.2001 by citing aforesaid decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o M/s Ashok Leyland Ltd and M/s Volvo India Pvt. Ltd. The appellants raised invoices in their own favour (without discharging duty liability thereon) so as to give an impression of captive consumption under exemption Notification No. 67/95-CE dt. 16.3.95. Benefit of Notification No. 67/95-CE is available for capital goods when they are produced and used within the factory of production. In the instant case, the goods have been sold to M/s Ashok Leyland Ltd. and M/s Volvo India Pvt. Ltd. Since the goods have been sold by the appellants, the Notification 67/95-CE, is not applicable. Further, both the adjudicating authorities and first appellate authority have given concurrent finding that the appellants did not produce any documentary evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices without discharging duty thereon. These actions have never been disclosed to the Revenue Authorities. Hence, there is definitive element of suppression. In the other case of Supreme Industries (supra) cited by the appellants, the appellants therein had declared the mould value were amortizing the same and they are not aware of the cost of repairs at the time of filing the list. The facts of that case are therefore distinct from the facts of the present case and hence, the same cannot be applied to the present case. Hence, the extended period has rightly being invoked for demanding the Central Excise Duty. 10. Since there was suppression of vital facts and filing of incorrect declaration under Rule 173B for wrongly availing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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