TMI Blog2022 (11) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded to any notice in respect of the payment so made demanding the duty so paid. Appeal allowed - decided in favor of appellant. - Excise Miscellaneous Application No. 85470 of 2022 & Excise Appeal No. 1527 of 2012 - A/86019/2022 - Dated:- 31-10-2022 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri P.K. Shetty, Advocate, for the Appellant Shri Dhirendra Kumar, Joint Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against order in appeal No. BC/184/M-III/20102-13 dated 27.07.2012 of the Commissioner of Central Excise (Appeals) Mumbai-III, Belapur. By the impugned order, following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the supplementary invoices they were discharging the duty also at the applicable rate. However they had not paid any interest on the duty paid after the clearance of the goods. On being pointed out the appellant paid the interest suo motto. 2.2 Revenue issued a show cause notice dated 19.04.2011 to the appellant asking them to show cause as to why: i) The Central Excise Duty amounting to Rs. 21,11,804/- (Basic Excise Duty Rs 20,51,577/-, Education Cess Rs. 41,034/- and SH Ed, Cess Rs. 18,9934) which was paid by the assessee at the time of raising supplementary invoices should not be demanded and appropriated under the proviso to Section 11 A (1) of the Central Excise Act, 1944. ii) Central Excise duty amounting to Rs.31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause title, duly supported by the certificates dated 27.05.2014 and 11.11.2020 (CIN: L21011MH1950FLC145537) issued by the Registrar of Companies is allowed. 4.2 Adjudicating authority has vide his order in original recorded the following reasons for not imposing penalty under Section 11AC of the Central excise Act, 1944: 15. In the present case, I find that the assessee has paid the differential duty and also interest on the basis of their ascertainment which is squarely covered under the provisions of sub-Section (2B) of Section 11A of the Central Excise Act, 1944. I also find that the assessee has short paid the differential duty as alleged in the show cause notice and on being pointed out the assessee has subsequently paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11AB, that is, for the period from the first date of the month succeeding month in which the duty ought to have been paid till the date of payment, of the duty. What is stated in Explanation 2 to sub-section (2B) is reiterated in Section 11AB that states where any duty of Excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person who has paid the duty under sub -section (2B) of Section 11A, shall, in addition to the duty, be liable to pay interest. It is thus to be seen that unlike penalty that, is attracted to the category of cases in which the non-payment or short payment etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reliance upon the apex Court's judgment in the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd 2009 (239) ELT 385 (SC) to further strengthen my stand in the matter. 4.3 In the appeal filed by the revenue, Commissioner (Appeals) has observed as follows for imposing the penalty under Section 11AC on the Appellant. 7. I have carefully gone through the facts of the case, records placed in the file and submissions made during the course of personal hearing. The issue is limited to whether in the light of the facts discussed, penalty under Section 11AC is imposable. 8. The respondents were raising supplementary invoices over several years i.e. between 2006-07 to 2009-10 but the interest on it was paid only on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be excused With self removal and assessment procedure, assessee has higher responsibility to comply with all requirements, and department is not expected to find about it in all cases - Section 11A of Central Excise Act, 1944. Hence, extended period is invokable 9. Further, the Adjudicating Authority has confirmed the demand issued for extended period. Show Cause Notice issued for extended period can be confirmed where the suppression, fraud or intention to evade is found. The respondents have not made any submissions on the issue raised by the Revenue. Confirmation of the demand for extended period, itself substantiate that the issue has all the ingredients for confirmation of the demand under proviso to Section 11A and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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