2016 (9) TMI 1372

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....ad sold the goods from their depot at price higher than that of the price at which goods were cleared from their factory. Payment of duty of Rs. 91,764/- was made on 29/2/2008 and Rs. 58,045/- on 19/04/2008. The Anti Evasion team visited their factory on 16/04/2008. Intimation of payment was filed by the appellant vide letters dated 8/5/2008 and 31/7/2008. Show Cause Notice was issued on 19/3/2009 which culminated in Order-in-Original dated 27/08/2009, confirmed demand of Rs. 1,50,859/- alongwith appropriate interest and the same was appropriated since the entire demand and interest was already paid. The Department filed an appeal before the first appellate authority for non-imposition of penalty by the adjudicating authority. The Ld. Commi....

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....er: "(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 1[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 sub-section (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 sub-section (1) in respect of the duty so paid." From the perusal of the above provision, it is seen that since the entire amount of differential duty was paid, and intimation was given by the appellant assesse to the Depa....

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....a case where the penal provisions can be upheld or that where the penalty can be imposed. Therefore, I refrain from imposing penalty in the instant case." Further, the Hon'ble High Court of Bombay in CCE, Goa Vs. Sunrise Zinc Ltd. (supra) relying upon the decision of the Apex Court in Union of India Vs. Rajasthan Spinning and Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.) held as under: "11. In a case of non-payment, short-payment or erroneous refund of duty normally three issues are likely to arise relating to (i) recovery, (ii) interest and (iii) penalty. The three issues are dealt with under Section 11A (Recovery of duties), Section 11AA (Interest for the period from three months after the determination of duty payable till t....