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TMI Blog2018 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ty vide post dated cheques. A further statement was recorded on 05.10.2007. Thereafter, a Show Cause Notice dated 05.11.2007 was issued to the appellant company and its director. The adjudicating authority confirmed the demand of duty of Rs. 21,31,530/- alongwith interest and penalty of equal amount of duty and also appropriated the amount of Rs. 11 lakhs as deposited by the appellant company. A penalty of Rs. 50,000/- was also imposed on Shri Madanlal Bagaria, Director of the appellant company. By the impugned order, the Commissioner (Appeals) modified the adjudication order to the extent that the penalty was reduced to 25% of the duty, as the appellant company deposited the entire amount of duty with interest. It has also reduced the penalty of Rs. 50,000/- to Rs. 12,500/- on the Director of the appellant company. The appellant company and the Director filed these appeals. 2. The Ld. Advocate appearing on behalf of the appellants argued the matter at length. He has also submitted written submission alongwith case laws. The main contention of the Ld. Advocate is that the Central Excise Officers ascertained the duty liability during the stock verification conducted on 20.09.2006 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within [one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, [ as if, [***]] for the words ["one year"], the words "five years" were substituted. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or [ on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was not paid by reason of fraud, collusion, etc. 8. In the instant case, I find that the Central Excise Officers visited the appellant's factory and conducted stock verification and found shortage of goods. A statement of Shri Madanlal Bagaria, Director of the appellant company and Appellant No. 2 herein was recorded on 20.09.2006, wherein, in answer to question No. 4, he has submitted as under:- As explained in earlier para (question). The reasons may be similar. "However, accepting our Central Excise liabilities on this account, I have paid through cheques Rs. 11 lakhs in account of L. M (Al.) Ltd. and Rs. 4 Lakhs in account of L. M. (DA) P. Ltd.". 9. It appears from the above statement that the Central Excise officers ascertained the duty liability on shortage of goods of Rs. 11 lakhs, which was accepted by the appellant No.2 and also paid thereon. In this background, the plea of the Ld. Counsel is that the appellant paid the duty as ascertained and no Show Cause Notice is required under the provisions of Section 11A (2B) of the Act. It is in addition to his submission that the extended period of limitation cannot be invoked. In this context, the findings of the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by post dated cheques on 20.09.2006 is ad hoc payment. It is well settled that a statement should be read as a whole and not in piece-meal. On perusal of the statement dated 20.09.2006, it is clear that the duty liability of Rs. 11 lakhs was ascertained against the shortage of goods. The next statement was recorded after one year on 05.10.2007. In the statement dated 05.10.2007, in reply to Q.3, the appellant No. 2 had stated that "However, accepting our duty liability, we have already made an ad-hoc payment of Rs. 11 lakhs through cheques on the date of detection i.e. 20.09.2006." On perusal of the statement dated 20.09.2006, there is no indication of ad hoc payment. Hence, I agree with the submission of the Ld. Counsel for the appellant that by inserting the word 'ad-hoc' in the statement dated 05.10.2007, the veracity and truth of the statement dated 20.09.2006 cannot be altered. Hence, there was no requirement to issue Show Cause Notice as per provisions of Section 11A (2B) as the appellant had already paid the duty as ascertained by the officers before issuance of Show Cause Notice. The Tribunal in the case of Leela Kempinski Vs. Commissioner of Central Excise, Mumbai report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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