2018 (7) TMI 1589

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.... the appellant is engaged in the manufacture of Sulphuric Acid and Super Phosphate, classifiable under Chapter 28 and 31 of the Central Excise Tariff Act, 1985. The appellant, during the period from March, 2011 to September, 2012, cleared the goods from the factory on payment of duty at the rate of 1% on fertilizers under Notification No. 1/2011-CE dated 01.03.2011 as amended by Notification No. 16/2012-CE dated 17.03.2012 (whereby entry under serial No. 40 of the above-mentioned notification was omitted). Show Cause Notice dated 15.01.2013 was issued alleging that the appellant-assessee while availing benefit of Notification No.1/2011-CE (Supra) made payment of Central Excise duty availing the CENVAT Credit account whereas the same should ....

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....and of interest and imposition of penalty. He further, contended that since the adjudicating authority had not denied the benefit of exemption notification, as the appellant had already paid the amount by cash towards the unpaid Central Excise duty on clearance of fertilizers under the said Notification the imposition of penalty under Section 11AC is unwarranted. 4. It is the contention of the Ld. Counsel that the statutory returns were filed by the appellants with the Department showing the payment of duty from CENVAT Account and the Department regularized and allowed the benefit of exemption Notification on payment of entire duty amount by cash. The matter being that of interpretation, it cannot be construed that there was suppression ....

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....it is necessary to prove that there was fraud, collusion, willful misstatement, suppression of facts with intent to evade payment of duty on the part of the appellant. From the perusal of records, I do not find any ingredients of willful misstatement, suppression of facts etc. with intent to evade payment of duty. There is also no suppression or mis-representation in respect of availment of CENVAT Credit. 8. I find that in the present case, the appellant was not retaining any money due to the Government. The subsequent payment in cash was the only action by which procedural irregularities could be rectified. 9. I find that the co-ordinate Bench of the Tribunal in the case of Banco Products (India) Ltd. (Supra) by relying upon the deci....