TMI Blog2009 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) and the Tribunal and remand the case back to the Commissioner (Appeals) for fresh decision on the issue of penalty after determining the question whether the non-payment of duty in the present case was on account of fraud, collision or any willful mis-representation or suppression of facts or contravention of any of the provisions of the Excise Act or the Rules made thereunder with intention to evade payment of duty as laid down under Section 11AC. - 8 of 2006 - - - Dated:- 4-11-2009 - Justice Deepak Gupta, J. and Justice V.K. Ahuja, J. Mr. Sandeep Sharma, Assistant Solicitor General of India for the appellant. Mr. Rahul Mahajan, Advocate for the respondent. [Order Deepak Gupta, J.]. - This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee filed an appeal and the appeal was allowed only on the ground that since the assessee had deposited the amount before the issuance of the show cause notice no penalty could have been imposed. The Tribunal also dismissed the appeal of the Revenue on the same ground. As already stated above, we have already taken a view that under Section 11AC of the Act penalty can be imposed even if the amount of excise is deposited before the issuance of show cause notice. Section 11AC of the Excise Act reads as follows: "11AC. Penalty for short-levy or non-levy of duty in certain cases.- Where any duty of excise has not been levied or paid or has been short levied or short-paid or erroneously refunded by reasons of fraud, collusion or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect." A bare perusal of the above provision shows that the said provision incorporates liability to pay penalty where the excise has not been paid or short paid or erroneously refunded on account of fraud, collusion, willful misstatement or suppression of facts or contravention of any of the provisions of the Act or Rules made thereunder with intent to evade payment of duty. Mere deposit of the amount prior to issuance of show cause notice will not negate the provisions of Section 11 AC. Faced with this sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
