2017 (9) TMI 1475

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.... ORDER Per: Shri P.K. Choudhary The appellant filed this appeal against imposition of penalty under section 11AC of the Central Excise Act, 1944. 2. The appellants are engaged in the manufacture of various excisable goods under Chapter 27, 29, 39 etc. of CETA, 1985. During the course of audit, it was noticed that the appellant cleared 150 MT of Motor Spirit for captive consumption under Notifi....

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.... consumption of Motor Spirit in their ER-1 Return, without mentioning the Notification No. or other legal provisions, under which the same was exempted from duty, the appellant failed to disclose all the facts to the Department. I am unable to accept the findings of the Commissioner (Appeal). Section 11AC of the Act, 1944 provides penalty for short levy or non-levy of duty in certain cases, where ....

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.... provision in Section 11A of The Central Excise Act, 1944, which is pari materia to the proviso to Section 28 discussed above, made the following observations : "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this po....

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....scape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." [Emphasis supplied I find that the appellants are not contesting the demand of duty alongwtih interest which was paid long before issuance of Show Cause Notice. Therefore, the imposition of penalty under Section 1....