TaxTMI 
TaxTMI 
2023 (4) TMI 1069
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....0) of the Central Excise Act, 1944 for being recovered from M/s Victor paints Private Limited, Victor House, Veera Desai Road, Andheri (West), Mumbai - 400 058 alongwith accrued interest under Section 11AA thereof; and (b) I impose a penalty of 2,96,603/- (Rupees two lakh ninety six thousand six hundred three only) upon M/s Victor paints Private Limited, Victor House, Veera Desai Road, Andheri (West), Mumbai - 400 058 under Section 11AC(1)(b) readwith Section 11A(5) of the Central Excise Act, 1944, (c) I order for appropriation of the duty amount of 7000/- (6795/- BED +133/- Ed. Cess+72/- SHE Cess) paid vide RG23A Part II Entry No.16 dated 30.04.2011, interest of 80/- paid vide E. payment under Challan No.02204110205201100120 dated 02.05.2011 and differential duty of 3,12,893/- (303779/- BED + 6076/- ED.Cess +3038/-SHE Cess) alongwith interest of 42252/- paid vide E- payment under Challan No.02204110709201100051 dated 07.09.2011 by M/s Victor paints Private Limited against the above confirmed liabilities." 2.1 Appellant is engaged in manufacture of paints and varnishes of heading 3208, acrylic wash distempers of heading 3209 and thinners of heading 3814 of the ....
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....interest at appropriate rate, on the above amounts of the unpaid duty of excise, be not recovered from them in terms of Section 11AA of the Central Excise Act, 1944; and (iii) penalty be not imposed on them under Section 11AC(1)(b) of the Central Excise Act, 1944 and /or under Rules 25 of Central Excise Rules, 2002." 2.5 This show cause notice has been adjudicated as per the order-in-original referred in para 1 above. Appeal filed by the appellant to the Commissioner (Appeals) has been dismissed by the impugned order. Hence this appeal. 3.1 We have heard Shri Vinay S. Sejpal, Advocate for the appellant and Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- • It was on the account of bonafide error that the appellant continued to pay duty on the value determined after claiming abatement of 35%, even after the same was revised by Notification dated 24.12.2008. • Accordingly invoking extended period of limitation for making the demand may not be proper as there was no intention to evade payment of duty. • Also the penalty unde....
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....s:- "10. Under Rule 6 of the Central Excise Rules, 2002; it is the noticee, who is assessor of the goods to their payable duty of excise. Since the excisable goods, manufactured by them, call for determination under Section 4A of the Central Excise Act, 1944; the law enjoined the noticee to have determined them correctly. They ought to have furnished all relevant information, which had been ordained in Rule 12 of the Central Excise Rules, 2002. In mandate thereof; they ought to have at least mentioned the notification, whereunder they had been computing their transaction value under Section 4A of the Central Excise Act, 1944. This should have been declared in column 4 thereof. 11. These made averments go abegging when they turn around to spell fineries in law to say that they would not sate the defaulted liabilities, even if authorized by law, because they fall beyond the normal period of limitation. This finery in law is adopted on 20.03.2012, even after they make a commitment on 02.05.2011, barely a year earlier, to make good all the defaults and seek time for the reason of having insufficient balance in their cenvat accounts. The shallowness of reasonability in....
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....assessee shall be liable' proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. liability to pay duty'. It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable. Most of cases relied upon by learned counsel for the assessee had their foundation on Bharat Heavy Electrical's case (supra). As noted above, the same is based on concession and in any event did not indicate the correct position in law." 13. In the premises, the necessary determination in accordance with the provisions of Section 11A(5) of the Central Excise Act, 1944 must occur. Consequently, I determine and confirm the amounts of 5.93,205/- [ 5.75.926 (CENVAT)+11,519/- (EC) +5,760/- (SHEC)] alongwith accrued interest thereon for being recovered from the noticee in terms of and in accordance with Section 11A(10) readwith Section 11AA of the Central Excise Act, 1944." 5.1 In the present case appellant has pleaded that the error in computing the assessable value was bonafide error for which extended period of limit....
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....al has primarily acted upon the fact that even IOC, which was under Excise Control for generations, was unaware of the relative changes in law and, therefore, the stand of the respondent/assessee, a bulk repacking unit that it had no knowledge of the change of law has to be accepted. In fact, the Tribunal accepted the plea of the ignorance of law as a primary reason and, accordingly, held that demand invoking the larger period provided under proviso to Section 11A could not be sustained. Accordingly, the Tribunal went on to hold that the penalty and interest levied thereon also are unsustainable. 16. In this case, we have already extracted both the adjudication orders, viz., on the first occasion and, thereafter, on remand. There is a specific finding by the Commissioner that only due to ignorance of law, the assessee has not paid the duty. It is trite law that ignorance of law cannot be a ground to avoid tax liability and to allow the appeal. There is yet another factor involved in the present case, viz., IOC being a public sector undertaking, as has been admitted by the Tribunal, is under Excise control for generations. IOC has supplied goods in bulk and, therefore, show....
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....95 (Supp) (3) SCC 462 = 1995 (78) E.L.T. 401 (S.C.)], the Supreme Court held as under:- "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 power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different than what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parti....
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....JT 2009 (7) SC 314 = 2009 (238) E.L.T. 3 (S.C.), wherein, the Supreme Court held as follows : "23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharamendra Textile decides. 24. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only in so far as Section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision. 25. In the light of the discussion made above it is evident that in both the appeals, orders were passed by the Tribunal on a wrong premise. In both the appeals, therefore, the impugned orders passed by the Tribunal are set aside and the matters are remitted to the res....