TaxTMI 
TaxTMI 
2021 (12) TMI 74
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.... the additives and sold under different brand names. As per Notification No. 4/2008-CE dated 01.03.2008, two effective rates of Central Excise duty were prescribed on MS and HSD, one for MS and HSD which was "intended for sale without any brand name‟ and the other for MS and HSD which was "intended for sale with a brand name‟. The appellant manufactured and cleared MS and HSD being standard products without any brand name on payment of rate of duty applicable for such unbranded MS and HSD. Since the OMCs sold the MS and HSD under brand name and the excise duty is payable at the rate applicable on branded goods, the department vide letter dated 17.07.2008 directed the appellant to furnish information regarding the process of manufacture of branded MS and HSD, names of OMCs to whom such products were sold and copies of sale-purchase agreements. The requisite information was provided by the appellant vide letter dated 28.07.2008. The appellant, after getting information from OMCs, the details of branded goods sold by them, deposited the differential duty and informed the department vide letter dated 06.10.2008. However, the department issued a show cause notice dated 19.03....
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....goods, the goods intended were sold without brand, the rate of duty shall be applicable accordingly. In the present case, the OMCs have not informed the appellant at the time of clearance of MS and HSD the intention of goods being sold without the brand name. Therefore, the appellant has correctly paid excise duty considering the MS and HSD as unbranded, in terms of purchase order issued by the OMCs. In this regard, he placed reliance on the following judgments:- (a) Inter Continental (India) - 2008 (226) ELT 16 (SC) (b) Inter Continental (India) - 2003 (154) ELT 37 (Guj.) (c) Clough Engineering Limited - 2006 (198) ELT 457 (Tri. Mum) (d) National Organic Chemical Indus. Limited - 2000 (126) ELT 1072 (Tri.) (e) B.G. Exploration & Production (I) Limited - 2014 (301) ELT 81 (Tri. Mum.) 4. He further submits that demand is barred by limitation as appellant has not suppressed or misstated any facts so as to attract extended period of limitation. He submits that there is no reason for the appellant to evade excise duty for the reason that actual duty paid by the appellant is reimbursable by the OMCs. Therefore, there is no malafide on the ....
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.... of the Revenue reiterates the findings of the impugned order. 8. We have carefully considered the submissions made by both the sides. We find that appellant have vehemently argued that since the differential duty has been paid before issuance of show cause notice along with interest, the case is required to be closed in terms of Section 11A(2B) of Central Excise Act, 1944 prevalent at the relevant time. On perusal of the impugned order, we find that Adjudicating Authority, as regards the submission of the appellant for waiver of show cause notice in terms of Section 11A(1(b) read with Section 11A(2) of Central Excise Act, 1944, following finding was given:- "27.4 As regards waiver of show cause notice under Section 11A(1)(b) read with Section 11A(2) of the Central Excise Act, 1944, it is pertinent to reproduce the relevant provisions of Section 11A, of the Central Excise Act, 1944. "(1) Where any duty of excise has not been levied "or paid, or has been short-levied or short-paid or erroneously refunded; for any reason, other than the reason of fraud' or collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of t....
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.... duty, may pay the amount of duty 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: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in sub-Section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with inte....