2009 (3) TMI 674 - AT - Central Excise

Summary

Issues:
1. Reduction of penalty based on the amount deposited before issuance of show cause notice.
2. Disposal of cross objection along with the appeal.
3. Application of the Proviso to Section 11AC regarding the payment of duty, interest, and penalty within 30 days.

Analysis:

1. The first issue in this case pertains to the reduction of penalty based on the amount deposited before the issuance of the show cause notice. The Tribunal observed that the penalty of Rs. 75,000/- was more than 25% of the duty amount deposited by the appellant before the show cause notice was issued. Citing relevant case laws, the Tribunal rejected the Revenue's appeal, stating that no enhancement of penalty was warranted in this scenario.

2. Moving on to the second issue regarding the disposal of the cross objection, the assessee contended that the cross objection should have been disposed of along with the appeal. The Tribunal agreed with the assessee's argument, rectified the mistake, and proceeded to decide the cross objection as if it were an appeal by the assessee.

3. Lastly, the third issue involves the application of the Proviso to Section 11AC concerning the payment of duty, interest, and penalty within 30 days. The Tribunal noted that the penalty amount was paid by the assessee on a date after the Order-in-Original was passed. Since there was no evidence to suggest that the Order-in-Original was received by the appellant 30 days before the penalty payment, the Tribunal found no basis to invoke the Proviso and further reduce the penalty amount from Rs. 75,000/- to Rs. 58,717/-.

In conclusion, the Tribunal rejected the cross objections and disposed of the ROM application, maintaining the penalty amount at Rs. 75,000/- based on the specific circumstances and legal provisions analyzed during the proceedings.