TaxTMI 
TaxTMI 
2010 (11) TMI 901
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....Rs. 8,96,601.14 plus Education Cess of Rs. 17,932/- along with interest paid by them on the following grounds :- (1) they had discharged duty of Rs. 92,155/- (BED) and Rs. 1,349/- (Education Cess) for the month of September, 2004 by availing Cenvat credit on inputs purchases in the month of October, 2004; (2) they had not maintained records as per Rule 9(5) of the Cenvat Credit Rules, 2004 and Chapter 6 (part 1) of the Supplementary Instructions to the Central Excise Manual pertaining to maintenance of records; and (3) they had failed to pay the amount equivalent to the Cenvat credit availed on inputs lying in stock or in process or contained in the final products as on the date of opting out of the Cenvat credit in ....
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....uires that penalty equivalent to the duty can be imposed when the amount of duty payable has been determined under sub-section (2B) of Section 11A and the ingredients required for penalty under Section 11AC were satisfied. In view of the decision of the Tribunal cited by him and in the absence of determination of duty liability under Section 11A(2B) of Central Excise Act, 1944, he submits that imposition of penalty under Section 11AC is required to be set aside. We find that in this case, the facts are not comparable to the facts of the case in the R.R. Oomerbhoy Pvt. Ltd case (supra). In the case of R.R. Oomerbhoy Pvt. Ltd., the duty was paid by the assessee prior to the issuance of show cause notice and it was the claim of the appellant i....
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....ficers and thereafter the amounts payable were finalized. Such finalized amounts were paid by the appellants and thereafter a show cause notice was issued proposing to appropriate the amounts paid as well as proposing to impose penalties. 4. In the instant case clearly, the provisions of Section 11A(2B) as well as provisions of Section 11AC of Central Excise Act, 1944 have been followed by the Revenue. It cannot be said that the duty amount payable was not determined under Section 11A(2B) before the issue of show cause notice in this case. Since the amount had been worked out after verification and detailed investigation, the amount paid by the appellant as per the determination was proposed to be appropriated. Since the determinati....
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....of the records of the said unit for the period April, 2001 to August, 2005 and further investigation by the Headquarters Preventive unit. Therefore, the extended period of time under the proviso to Section 11A(1) is invokable in the case." 6. From the extract reproduced above, it can be seen that the Department has clearly indicated the provisions of Rules, which have not been followed and it has also been stated that the above facts were not reflected in the periodical returns filed by the appellant and the Department came to know the facts only during the course of audit of the records of the unit in 2005 and, further investigation by the Headquarters, Preventive unit. In fact, the statement of facts attached to the show cause not....
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....y of excise had not been levied or paid by reason of fraud, collusion or wilful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent." There is no such averment in the show cause notice. In this case, in the statement of facts attached to the show cause notice, the rules contravened and the fact that details were not incorporated in the returns have been specified and it has also been stated that extended period is invocable. In the case of Pushpam Pharmaceuticals Company v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.), the Hon'ble Supreme Court had held that extended pe....
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....doubt of the appellant cannot be said to have been successfully rebutted. The finding of the Tribunal that there was an intention on the part of the appellant to evade payment of duty, is not based on any material. It was an inference drawn for which there was no basis." 6.1 On fact, this decision cannot be applied to this case. 7. From the discussion of the case-laws cited by the learned Advocate above and the facts of the present case would clearly show that none of these decisions are applicable to the present case. Having regard to the facts and circumstances of this case and the contents of the show cause notice, we hold that extended period has been rightly invoked in this case. 8. The alternative submission ma....