TaxTMI 
TaxTMI 
2024 (3) TMI 557
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....uary 2009 to 7th April 2011 and Rs. 1,50,23,961 for the period thereafter to July 2012 under section 11A of Central Excise Act, 1944, in order [ order-in-original no. 01/CEX/2014 dated 9th January 2014 ] of Commissioner of Central Excise, Customs & Service Tax, Nashik, along with interest of Rs. 70,65,341 for the said period and of Rs. 14,93,887 for delayed payment of duty for 2008 under section 11AB of Central Excise Act, 1944, while imposing penalty of like amount for the first of the demands and Rs.75,11,981 for the rest under section 11AC of Central Excise Act, 1944, is less about claim on merit that differential duty was not leviable than about justification for exclusion from jurisdiction for being proceeded against. 2. A brief bac....
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....der was culmination of notice dated 4th July 2013 proposing recovery of duty and interest as well as imposition of penalty. 3. In response thereof, the noticee, by letter dated 27th September 2013, countered the proposals in the notice and also intimated that they had ceased to be manufacturers as far back as November of the previous year. Owing to transfer of the facility to another entity which, having assumed responsibility for past and future liabilities, should have been the surrogate noticee. That these facts were within the ken of jurisdictional office was sought to be impressed on the adjudicating authority by drawing attention to letter of theirs of 1st November 2012 itself. Thus, it is common ground that duty liability from Jan....
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.... contended that imposition of penalty on them, a mere bystander, was inappropriate in that the ingredients of section 11A of Central Excise Act, 1944 could not be alleged to exist for the reason that a notice on identical grounds had been issued earlier, that the receiving undertaking of the group as well as appellant had no motive for undervaluation given eligibility for credit and that the duty liability on completion of downstream production was well beyond the credit balance for duty to be paid as deposit. Learned Authorized Representative drew our attention to the elaborate reasoning in the impugned order which countered all these claims. 5. The primary contention of not being an assessee, as on date of issue of show cause notice, f....
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....evant date' was accorded different treatment from duties, not paid or short-paid attended upon by fraud, collusion, willful mis-statement, suppression of facts or contraventions with intent to evade duties, taken up for recovery. The claim of appellant rests upon provisions that prevailed as on date of notice, viz., '(b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of, ̶ (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon under section 11AA.' in section 11A(1) of Central Excise Act, 1944 and '(2) The person who has paid the duty under c....
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....evied or short paid or erroneously refunded, the person, chargeable with the 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 ....
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....ght. 8. That the onus of countering the ingredients for resort to such penalty does not devolve on the appellant from having been aware of propensity of theirs, from experience of the past, to indulge in such evasion is neither logically acceptable nor legally tenable. However, it is on record that the appellant had, upon being prompted and before issue of notice, made good the differential duty with interest. It is also on record that credit of such duty had been enabled by issue of supplementary invoices thereafter. It is not the case of Revenue that proceedings for recovery of such credit had been initiated or concluded from which it may be inferred that entitlement to credit was undeniable. The appellant did not claim in August 2012 ....