2018 (7) TMI 312 – CESTAT KOLKATA – TMI – Penalty u/s 11AC – no suppression of facts – more than one SCN on same issue, however, the facts were all disclosed in first SCN – whether the non-mentioning of same facts in subsequent SCN, which were mentioned in first SCN would amount to suppression of facts? – Held that:- The principles as laid down in the cases of Nizam Sugar Factory v. Collector of Central Excise, A.P. [2006 (4) TMI 127 – SUPREME COURT OF INDIA] is squarely applicable to the facts of the present case, where it was held that When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities.
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Since an earlier show cause notice dated 30.09.2013 was issued for the earlier period in respect of the same subject matter, it ca
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her unit (at Pune) for consumption of the same in production of other articles leading to short payment of Central Excise duty. The adjudicating authority confirmed the demand of ₹ 10,75,967/- along with interest and imposed equal penalty under section 11AC of the Act. On appeal, the Commissioner(Appeals) set aside the penalty imposed on the assessee. Hence the present appeal by the Revenue before the Tribunal. 2. Ld.Supdt.(AR) appearing on behalf of the Revenue reiterates the grounds of appeal filed by the Revenue. 3. Ld.Counsel appearing on behalf of the Respondent assessee filed copies of the show cause notices issued as under:- SCN No & Date Period Demand, Rs O-in-O No. & Date Status 34/ADC/2013 : 30 9 2013 Sept 2008 to March 2011 6,66,680/- + Interest + Penalty 18/JC/CE/Kol- IV/Adjn/2014 : 07052014 Paid Entire Duty, Interest + 25% Penalty Issue closed 36/ADC/2015 : 03/11/2015 2011-12 & 2012-13 10,75,967/- +interest+ 100% Penalty 59/JC/CE/Kol- IV/Adjn/16 : 20/12/2
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f duty, I find it is the case of the appellant that there had been no contravention of the provisions of Rule 8 of the Valuation Rules, 2000 in as much as they had paid the duties on the basis of 110% of the cost of productionof each of the goods as ascertained on the basis of cost data available with them at the time of removal of the goods from their factory. Actual cost data for any goods can be ascertained only after close of the relevant year and that they cannot be, and hence are not, available at the time of removal of the goods any time during the year. Therefore, as per general practice in the trade, duties are paid at the time of removal of the goods on the basis of data available with them at the time of their clearances and shortfall if any are paid subsequently when final cost data are ascertained after close of the relevant year and on obtaining CAS-4 Certificate from specified authorities. Therefore, differences between the costs that are determined after close of the ac
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al duty in full with due interest under intimation to the Department vide their letter dated 06.03.2014 before issuance of impugned notice, which shows their bona fide intention. I further find that the impugned goods were cleared on the basis of stock transfer to the appellant s other unit at pune. That being the position, there cannot be any intention to evade payment of duty in a revenue neutral situation, since whatever duty is paid by the appellant is available as cenvat credit to its other unit receiving the goods along with the duty payment documents. I find that neither any credible evidence been adduced by the Department in support of the allegation of suppression with intent to evade duty nor has the aspect of such allegation been established clearly in the impugned order with corroborative evidence. Therefore, I am of the view that suppression of fact with intent to evade duty on their part is not tenable. 6. I am of the considered view that the principles as laid down in th
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