2016 (6) TMI 268

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....of the case is that M/s. ITC Ltd. Food Division had given machineries on hire to M/s. MR Brown Bakers (I) Pvt. Ltd. (MRBBIPL) to manufacture Biscuits namely Sunfeast Biscuits for them. On termination of contract and as per the direction of the appellant, the capital goods were dispatched to M/s. Utsav Food Products and M/s. Disha Foods Pvt. Ltd. While clearing the capital goods from M/s. MRBBIPL excise duty was not paid/modvat was not reversed even the appellant had paid entire duty amount to M/s. MRBBIPL. Therefore the said capital goods were seized from the premises of M/s. Utsav Food Products and M/s. Disha Food Products Pvt. Ltd. Thereafter M/s. MRBBIPL have paid entire duty along with interest on 12.12.2007. After investigation, a show....

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....According to him, the show cause notice should not have been issued, therefore in the absence of any show cause notice confiscation of goods and redemption fine does not arise. He further submits that the appellant M/s. ITC Ltd. being owner of the goods, have clearly shown their bona fide before removal of the goods from M/s. MRBBIPL. They have made a payment towards the excess duty to M/s. MRBBIPL. Therefore in the absence of any malafide intention, suppression of facts, misstatement, fraud, collusion etc. can not be alleged in the facts of the present case. Therefore the appellant deserves for the waiver of redemption fine in view of Section 11A(2B) of Central Excise Act, 1944. 4. On the other hand, Shri N.N. Prabhudesai Ld. Supdt. (A.R.....

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.... by the department, M/s. MRBBIPL has discharged the entire duty along with interest, before issuance of show cause notice. Since the M/s. MRBBIPL has issued the invoice and there is no case of the department that it is a fake invoice, suppression of facts, misstatement, collusion, fraud etc. is not exist, therefore in terms of Section 11A (2B) the show cause notice should not have been issued. Section 11A (2B) reads as under: "Section 11A(2B) Where any duty or 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 71[on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] ....