TaxTMI 
TaxTMI 
2015 (11) TMI 1340
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.... for waiver of penalty of equal amount of duty of Rs. 1,11,796/- which was initially waived by the original adjudicating authority and subsequently imposed by the Commissioner (Appeals) in the impugned order. 2. The fact of the case is that the appellant cleared the finished goods in unpacked condition in July, 2007 to their sister unit on which excise duty was paid in terms of Rule 8 of Central Excise Valuation Rules, 2000. During the course of EA-2000 audit conducted during the months of September and October, 2009, it was pointed out by the Audit Team i.e. a short payment of excise duty which the assessee paid the differential duty along with interest on the basis of Chartered Accountant Certificate on 05.10.2009. A show-cause notice ....
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....d and cleared on payment of duty. Since the transactions were between the unit of the same company and the consignee unit was availing the CENVAT credit, it is a clear case of Revenue neutrality therefore, the malafide intention is not established. For this reason also, the penalty under Section 11AC should not be imposed. She further submits that in the show-cause notice, there is no allegation as regard ingredient of proviso to Section 11A such as suppression of fact, mis-declaration, fraud, collusion, etc. with intent to evade payment of duty. Therefore for this reason also the penalty under Section 11AC cannot be imposed. In this support she relied upon a judgement in the case of Amrit Foods Vs. CCE, U.P. - 2005 (190) ELT 433 (SC) where....
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....y have also not resorted to the provisional assessment. Therefore they have suppressed the fact of not disclosing the incorrect valuation of the goods. Therefore the learned Commissioner (Appeals) has rightly imposed the penalty of equal amount of duty invoking under Section 11AC. As regard the submission of the learned Counsel on Section 11A(2B), he submits that the appellant has paid duty and interest only after pointing out by the Audit Team, had the Audit Officer not pointed out the discrepancy the duty differential payment could have been escaped, therefore this is a fit case for invocation of penal provision under Section 11AC. He placed reliance on the following judgements:- (i) CCE Vs. Jagjeet Food Pvt. Ltd. - 2014 (3....
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....e provision of Section 11A(2B) which is reproduced below:- "SECTION [11A.................................................................. (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under subsection (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under subsection (1) in respect of the duty so paid: Provided that the Centra....
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....cise, Pune Vs. SKF India Ltd. - 2009 (239) ELT 385 (S.C.) squarely applies in the present case. In the said judgement the Hon'ble Apex Court held- "11. The payment of differential duty by the assessee at the time of issuance of supplementary invoices to the customers demanding the balance of the revised prices clearly falls under the provision of sub-section (2B) of Section 11A of the Act. 12. The Bombay High Court, Aurangabad Bench, in its decision in The Commissioner of Central Excise, Aurangabad v. M/s. Rucha Engineering Pvt. Ltd., (First Appeal No. 42 of 2007) that was relied upon by the Tribunal for dismissing the Revenues appeal took the view that there would be no application of Section 11A (2B) or Section 11AB....
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....alue and those were cleared on short payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus it was clearly a case of short payment of duty though indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of Section 11A and attracted levy of interest under Section 11AB of the Act. 15. for the reasons discussed above we set aside the judgments and orders passed by the Tribunal and the Commissioner (Appeals). We restore the order passed by the Assistant Commissioner in so far as charge of interest is concerned. On the facts of this case there i....