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2019 (5) TMI 711

hin 45 days of export as prescribed under the said Notification - suppression of facts or not - imposition of penalty - HELD THAT:- It is a case of non-submission of proof of export which is a procedural lapse and accordingly the appellant has paid the duty along with interest to the extent of not submitting the proof of export. Further, the penalty envisaged under Section 11Ac read with Rule 25 is not warranted in the present case as the ingredients required for imposition of penalty such as fraud, wilful mis-statement, collusion or suppression of fact with intent to evade payment of duty is absent in the present case. Penalty u/s 11AC - HELD THAT:- In the present case, the provisions of Section 11AC have not been complied with and in t .....

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lty. After following the due process, the Original Authority vide Order-in-Original dated 30.12.2016 dropped the demand or ₹ 54,43,820/- towards clearance of 15703.60 MT cement for which the appellant has submitted the proof of export and 4848.30 MT of cement cleared by claiming exemption under Notification No. 6/2002-CE dated 01.03.2006. The Assistant Commissioner confirmed the demand of ₹ 21,63,232/- along with penalty of ₹ 21,63,232/- for which the appellant has failed to submit the proof of export. Further, the Learned Asst. Commissioner has appropriated the duty along with interest as paid by the appellant amounting to ₹ 21,63,232/- and ₹ 8,13,146/-. Aggrieved by the imposition of penalty imposed by the Or .....

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or suppression of facts with intention to evade payment of duty is absent in the present matter. He further submitted that there is no allegation against the appellant regarding diversion of the goods to any other customers and hence the imposition of penalty under Section 11AC cannot be sustained. He further submitted that as per the SEZ Act and the Rules if the appellant fails to furnish the proof of export, they are liable to pay duty and in the present case, the appellants have already paid the duty along with interest wherever the proof of export are not submitted. He further submitted that this issue has been considered in various decisions of the Tribunal and it has been consistently held that if the conditions of Section 11AC are n .....

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1987 (29) ELT 492 (SC). 5. On the other hand, the Learned AR defended the impugned order and submitted that the appellant has failed to submit proof of export and therefore he has concealed the material facts from the Department and therefore, the penalty imposed under Section 11AC read with Rule 25 of the Central Excise Rules, 2002 is justified. 6. After considering the submissions of both the parties and perusal of the material on record, I find that during the scrutiny of the ER-1 Returns, the Department came to know that the appellants have cleared the goods to SEZ but have not produced the proof of export within the stipulated time. Thereafter, the appellant was asked to submit the proof of export in regard to clearance made to SEZ un .....

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r this finding, has relied upon the decision of the Hon ble Apex Court in the case of UOI v. M/s Dharmendra Textile Processors - 2008 (231) ELT 3 (SC) and UOI v. Rajasthan Spinning & Weaving Mills - 2009 (238) ELT 3 (SC). In reply to this argument, the Learned Counsel submitted that the Hon ble Apex Court has clarified in the case of Rajasthan Spinning and Weaving Mills cited supra that for imposition of penalty under Section 11AC, there has to be an act of deliberate deception by the assessee with intent to evade payment of duty by adopting any of the means mentioned in the section. Further, I find that in the present case, the provisions of Section 11AC have not been complied with and in the absence of which imposition of penalty unde .....

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