TaxTMI 
TaxTMI 
2014 (11) TMI 573
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....r Section 11AC of the Central Excise Act, 1944? (ii) Whether the Appellate Tribunal is correct in reducing the penalty when holding that the respondent had an intention to evade payment of duty on the raw materials in question?" 2. We have heard Mr. E. Vijay Anand, learned counsel appearing for the Revenue. Though the respondent has been served and their name is printed in the cause list, none appeared for the respondent. 3. The respondent/assessee availed benefit under Rule 19(2) of the Central Excise Rules, 2002, (Rules) read with the provisions of Central Excise (Removal of goods at concessional rate of duty for manufacture of Excisable goods) Rules, 2001, for procuring cotton yarn without payment of duty for the manufa....
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....p;Aggrieved by the same, the assessee preferred appeal before the Commissioner of Central Excise (Appeals). The Appellate Authority after considering the case, held that the assessee has misused a beneficial scheme and underscored the trust reposed on them by the Government and it is a clear case of defrauding the Government. Accordingly the appeal was rejected and confirmed the order of the Original Authority. 5. Aggrieved by the same, the assessee preferred appeal to the Tribunal. The Tribunal considered the case of the assessee and in paragraph 4 of the order, pointed out that assessee was aware of their liability when they diverted the final product to local market instead of exporting it and the assessee did not maintain proper a....
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....ointed out that in order to bring the case under Section 271(1)(c), there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision could not be invoked. Thus, the Hon'ble Supreme Court pointed out that a mere making of a claim, which is not sustainable in law, by itself, would not amount to furnishing of inaccurate particulars regarding the income of the assessee. The reading of the decision of the Hon'ble Supreme Court referred to above, thus points out that for sustaining penalty, the bona fide explanation of the assessee must....
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....how otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise. 8. In the light of the above decision, it is not sufficient that the mere payment of duty either immediately prior to the show cause notice or immediately prior to the passing of the order of adjudication would absolve the assessee from the levy of penalty nor it could be treated as a mitigating circumstances for the purpose of reduction of penalty. It has been held that once the provisions of Section 11AC stands attracted and the authority recorded a clear finding that there is an intention....