TMI Blog2017 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for that reason only for every period within normal period of one year, different show cause notices were issued. Since there is no suppression of facts, the ingredient required for invoking the Section 11AC does not exist in the present case - appellant has made out fit case for waiver of penalties u/s 11AC and Rule 25 imposed by the Adjudicating authority - appeal disposed off - decided partly in favor of appellant. - E/3192 TO 3195/05, E/2259/06, E/56/07 - A/85900-85905/17/EB - Dated:- 16-2-2017 - Mr Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri. Gajendra Jain, Advocate alongwith Ms. Anjali Hirawat, Advocate and Mr. Aziz Khan, Advocate for the Appellants Shri. K.M. Mondal, Special Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices pertain to the present appeals were issued for normal period of one year therefore there is no suppression of facts on the part of the appellant. He submits that matter in the present case was referred to the Larger bench. The Larger bench only due to difference of opinion in appellant s own case by Ahmadabad bench decision in the appellant s own case reported as Oil and Natural Gas Corporation Ltd [2015 (320) ELT 641(Tri. Ahm) wherein appeal of the appellant was allowed. In this case there is no suppression of facts on the part of the appellant therefore no penalty in particular under Section 11AC can be invoked. He further submits that it is settled law that when matter is contentious there cannot be intent to evade payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs CCE 2009 (248) ELT 687 (Tri. - Ahmd.) 7 CCE C Vs Alicon Pharma P Ltd 2015 (322) ELT 47 (Guj.) 8 Supreme Lamps Vs CCE 2015 (327) ELT 525 (Tri. - Del.) 9 Ultra Tech Cement Ltd Vs CCE 2016 (332) ELT 356 (Tri. - Del.) 10 Jaiprakash Industries Ltd Vs CCE 2002 (146) ELT 481 (SC) Penalty is not imposable under Rule 25 since the clause under which penalty is sought to be imposed has not been mentioned. 11 Amrit Foods Vs CCE 2005 (190) ELT 433 (SC) 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised for the higher price than the price shown in the excise invoice. Therefore due to this mis-declaration penalty under Section 11AC is sustainable. As regard the submission of the Ld. Counsel that appellant is government undertaking therefore no suppression of facts can be attributed to the appellant, he submits that only because the appellant is government undertaking the law applicable under Section 11AC cannot be avoided, in the law, no discrimination is available whether it is government undertaking or other than government undertaking. In this regard he placed reliance on the judgment of Bharat Petroleum Corporation Ltd Vs. Commr. Of C. Ex. Nasik[2009(242) ELT 358(Tri. Mumbai)] 4. We have carefully considered the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Ltd (supra) , Hon ble Supreme Court held that on debatable issue when question was answered differently by different bench, suppression of facts does not exist. In this Tribunal decision in case of Telco Ltd (Supra) taking similar view held that assesee under bonafide doubt as regard the excisability of product on account divergent judicial view, hence non levy of duty being not the result of willful act with intent to evade payment of duty. Hence the extended period of limitation not invokable. This decision of the Tribunal has been upheld by the Hon ble Bombay High Court reported as Commissioner Vs. Telco Ltd [2009(234)ELT A56 (Bom.)] . In the case of Charak Pharma Ltd (supra) Hon ble Gujarat High Court held that matter is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t qualifies provision of Section 11AC of CEA, 1944. As discussed above, taking into consideration of facts and circumstances of the case ingredient for invocation of Section 11AC are not existing. In the present case, consequential penalty under Rule 25 is also not imposable as no malafide intention is proved against appellant. As regard the decision in case of Bharat Petroleum Corporation Ltd (supra) relied upon by the Special counsel appearing on behalf of the Revenue, we find in the said case demand was for extended period whereas in the present case periodical show cause notices were issued for the normal period of one year therefore the said case stands distinguished. As per our above discussion, we are of the considered view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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