TMI Blog2019 (9) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... , we are called upon to decide the issue in vaccum - this issue was not urged before the Tribunal. same does not gives rise to any substantial question of law - question not entertained. Whether, on the facts and in circumstances of the case and in law, the Tribunal was correct in upholding penalty on the Appellant under Section 11-AC of the Act, where the assessee paid the tax demand along with interest prior to the issuance of show cause notice itself? - HELD THAT:- The penalty is imposable under Section 11-AC of the Act is a finding of fact arrived at by all the Authorities under the Act. This concurrent finding of fact is not shown to be perverse in any manner - the question does not give rise to any substantial question of law - que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 204 was issued to the Appellant. The above notice alleged that during the period March 2000 to March, 2002,the Appellant received orders for manufacture of 54 SPM on job work basis, utilizing their own material as well as raw materials supplied free by the person who placed the order. However, while determining the value of SPM for payment of excise duty, the Appellant had suppressed the value of free issue of raw material received by it, resulting in under valuation of the SPM s. This resulted in short payment of ₹ 43.26 lakhs of excise duty. Thus, the Appellant was called upon to show cause why the amount of ₹ 43.26 lakhs being the duty short paid in view of suppression of facts be recovered/ adjusted by invoking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Thus, it was contended before the Tribunal that there is no occasion to impose penalty under Section 11-AC of the Act. This was negatived by the Tribunal. In fact, the impugned order relies upon the decision of the Supreme Court in Union of India v/s. Rajasthan Spg. Wvg. Mills 238 ELT 3 to hold that where non payment of tax is intentional, then the provisions of sub-section (2B) of Section 11A of the Act will have no application. It found that the contention of the Appellant that it was a bona fide mistake on their part in not having taken the full value of the free supplies while computing the assessable value of the SPM is not acceptable. This as this alleged mistake was over a period of time and found to be deliberate from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it is submitted that, no penalty can be imposed. (ii) In any case, it is submitted that the entire exercise would be of revenue neutral the duty paid would be available as CENVAT Credit to the buyer. Thus, the payment of duty would be available to the buyer as credit. Thus, no loss of Revenue. (iii) We find that both these contentions are being raised before us for the first time. This issue was not urged before the Tribunal as there were no facts on record to support the submission. Therefore, in the absence of any facts being on record to support the above legal submission, we are called upon to decide the issue in vaccum. (iv) In view of the above as this issue was not urged before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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