AKASHDEEP PIPES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The present appeal under Sec. 35G of The Central Excise Act, 1944 has been preferred against the order dated 21.09.2017 passed by the learned Judicial Member of the Custom, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the 'Tribunal'), Regional Bench, Kolkata in Excise Appeal No. 76395/16, C.O./75609/17, whereby and whereunder the learned Tribunal has upheld the order of the adjudicating authority to the extent of imposition of penalty of Rs. 8,47,131.00 U/S 11AC of the Central Excise Act, 1944 (hereinafter referred to as the 'Act').

(2.) Learned counsel representing the appellant has moved this application and submits that there are substantial questions of law arising out of the present appeal. Learned counsel submits that the anomaly in the particulars of GAR-7 as regards payment of duty through PLA is attributable to the concerned staff which was resorted by him with the sole motto of uploading ER-1 returns in time. According to the learned counsel, the facts of the present case, by no stretch of imagination, may be construed as suppression of fact or misstatement with intention to evade payment of duty which is the essential ingredient to deny the benefit of Sec. 11A(1)(b) read with Section 11A(2) of the Act.

(3.) Learned counsel submits that immediately after receipt of telephonic message from the department, the appellant had deposited the entire amount of duty along with interest and penalty imposed thereon. It is submitted that the payment of penalty has been made under protest. Referring to the order, as contained in Annexure9 dated 01.03.2016 passed by the Joint Commissioner, Central Excise and Service Tax, Patna, learned counsel submits that the view taken by the Joint Commissioner that the noticee has declared their duty liability in their ER-1 return, however, misstated that the duty has been paid by entering false Challan nos. looses its significance once it has been found that the appellant assessee has deposited all the duty liabilities amounting to Rs. 16,94,261.00 and also paid the interest thereon before issuance of the notice.