2010 (5) TMI 421

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....   Shri S.N. Srivastava, SDR, for the Appellant. Shri Sandeep Mukherjee, C.A., for the Respondent. [Order (Oral)]. - Appeal No. E/957/08 is by the Department against the order of the Commissioner (Appeals) No. IND-I/31/2008 dated 13-2-2008. Appeal No. E/1542/08 is by the assessee against the very same order of the Commissioner (Appeals). 2.Heard both sides. 3. The re....

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.... duty amounting to Rs. 4,73,370/- and after appropriating the sum of Rs. 72,218/- already paid ordered recovery of Rs. 4,01,152/-. He also imposed a penalty of Rs. 4,73,370/- under Section 11AC of the Central Excise Act, 1944. On appeal by the party, the Commissioner (Appeals) held that only a sum of Rs. 2,66,813/- made during the period August, 2006 to October, 2006 by way of debit entry in RG-23....

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....from May, 2006 to September, 2006. On careful perusal of the show cause notice, it is noticed that there was only short payment of duty of Rs. 72,218/- during those five months which stood paid by the assessee in October, 2006 along with interest. In other words, the show cause notice only alleged short-levy during these five months. Every case of short-levy cannot be treated as a case of default.....

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....cult to sustain. In other words, in the given facts and circumstances of the case, Rule 8(3A) cannot be invoked. 6. Apparently, it was a case of short-payment of Rs. 72,218/- relating to the five months and non-filing of returns by the due dates during these months. Therefore, the order of the Commissioner (Appeals) in demanding differential duty and permitting credit of equal amount in c....