2018 (7) TMI 852

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....e consumption, the appellants cleared fly ash bricks on payment of duty, however, the appellants have also cleared fly ash bricks for captive consumption and the same was used in the construction of building within the factory premises and also for floor or road outside the plant, but, within the factory. The said clearances of captive consumption were made without payment of duty. The department has issued show cause notice dated 13.10.2009 for the period October 2004 to March 2009, show cause notice dated 18.03.2010 for the period April 2009 to January 2010 and show cause notice dated 24.01.2011 for the period February 2010 to November 2010. In all three show cause notices, the demand of excise duty on the captive consumption of fly ash b....

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....rpretation of Notification No. 67/1995-CE dated 16.03.1995, therefore, there is no intention to evade excise duty. Therefore, the personal penalty imposed on the employee of the company is also not justified. He placed reliance on the judgement of this Tribunal in the case of Rashtriya Ispat Nigam Ltd. Vs. Commissioner of Central Excise, Visakhapatnam - 2003 (161) ELT 0285 (Tri.-Bang.). 3. Shri Amit Kumar Mishra, Ld. Deputy Commissioner (AR) appearing on behalf of the Revenue reiterated the findings of the impugned order. He submits that the appellant has never disclosed to the department regarding their claim on exemption notification No. 67/1995-CE dated 16.03.1995. Therefore, there is a clear suppression of the fact on the part of the....

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....emption notification. Therefore, with this failure, the appellants have suppressed the fact from the department. Accordingly, the extended period for the demand is clearly invokable in the facts of the present case. Consequently, the penalty under Section 11AC is also legal and correct in respect of the demand pertaining to the extended period. As regards the penalty imposed for the normal period it cannot be said that the appellants have suppressed any fact for the reason that once a show cause notice was issued in subsequent show cause notice of the same issue, the suppression of the fact cannot be alleged. For the purpose of penalty under Section 11 AC ingredient of suppression of fact, collusion, fraud, misstatement etc., should exist. ....