TaxTMI 
TaxTMI 
2023 (5) TMI 329
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.... following has been held:- "ORDER (i) I confirm the demand of central excise duty amounting to Rs.52,98,386.00 (Rupees fifty two lakh ninety eight thousand three hundred eighty six only) from M/s Zenith Birla (India) Ltd., located at near Khopoli Railway Station, Khopoli-410203, Raigad under section 11A(11) of the Central Excise Act, 1944 read with rule 6 of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 and as order appropriation of the amount of Rs.52,98,386.00 (Rupees fifty two lakh ninety eight thousand three hundred eighty six only) paid by them vide e-payment challan No.00127 dated 15.02.2011 during the case investigations; (ii) I order recovery of interest at t....
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.... has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined:" 4.3 It is observed that in the instant case, in the Monthly Returns (Annexure-II) for the month of December,2010 filed by 'Zenith' in terms of Rule 5 of Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of excisable Goods) Rules, 2001, that they had wrongly declared that the said....
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....(4)] for invoking the extended period of limitation and in Section 11AC for imposition of penalty are identical. In this case, the show cause notice was issued by invoking proviso to Section 11A(1) [Now Section 11A(4)] of the Central Excise Act, 1944 and the Commissioner has confirmed the demand under Section 11A(2) [ Now, Section 11A(11)] of the Central Excise Act, 1944. When ingredients are satisfied for invoking the extended period of limitation, penalty envisaged by Section 11AC of the Central Excise Act, 1944 would get attracted automatically and therefore, the Commissioner should have imposed equivalent penalty under Section 11AC of the Central Excise Act, 1944 instead of under Rule 25(1)(d) of the Central Excise Rules, 2002 4.5 Th....
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....eal of the Revenue is for enhancement of penalty contemplating imposition of penalty under Section 11AC as against the penalty imposed under Rule 25(1) of Central Excise Rules by Rs.37,98,386/- which is less than Rs.50,00,000/-. Therefore the appeal is not maintainable in terms of litigation policy circular. In support, the respondent has placed reliance on the following decisions:- Techno Economic Services Pvt. Ltd. [2010 (255) ELT 526 (Bom.)] Stovec Industries Ltd. [2014 (33) STR 124 (Guj.)] CESTAT, Chennai [2015 (329) ELT 55 (Mad.)]. 3.2 We take note of the above submission, but in our view, after enhancement the total amount of penalty imposed on the respondent would be around Rs.52,98,386/-. Accordingly we do not overrule....
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.... responsibility of the department too to follow up the full compliance by the assessees. On the other hand, for the violation of statutory provisions the noticee is liable to penal action under rule 25(1Xd) of Central Excise Rules, 2002, this is especially so, as there is an obvious intent to evade duty on their part when they procured duty-free materials and diverted the finished goods to local market instead of the intended purpose of export. However, I do not order confiscation of finished goods as proposed in the notice for obvious reasons. The first is that the impugned goods have not been detained or seized and are not available for confiscation. Second, in real sense the violation is in respect of duty-free raw materials which have n....
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.... and if duty has not already been paid, along with interest, the provisions of Section 11A and Section 11AB of Central Excise Act, 1944 shall apply mutatis mutandis for effecting such recovery. It may be noted that provisions of Section 11AC has not been made applicable under Rule 6 or any other Rule of said Rules, 2001. As such, no penalty can be imposed upon the assessee. 10. We agree with the above contention of the learned Advocate. After having seen Rule 6 or the other provisions of said Rules, 2001, we find that provisions of Section 11AC has not been made applicable. As such, we set aside the penalty of Rs. 2,96,881/- imposed upon the assessee. Revenue's appeal as also cross-objections are disposed of in the above terms." 3.5 Ev....