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TMI Blog2003 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in holding that no penalty under Section 11AC could be imposed by departmental officers till amendment to Section 33 by Finance Act, 1999 came into effect that abatement claimed by the assessee under Section 4(4)(d)(ii) has to be allowed and that the quantum of duty demanded is to be re-quantified treating the price realised by the appellant as inclusive of the duty payable. In the cross appeal, the assessee has prayed for rejection of the appeal filed by the Commissioner and for setting aside the penalty imposed under Rule 173Q by the Commissioner (Appeals) or in the alternative to reduce the quantum of the same. 3. As far as the issue relating to abatement claimed under Section 4(4)(d)(ii) of the Central Excise Act is concerned, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1999 the Section reads as follows :- Section 33. - Powers of adjudication. - Where under this Act or by the rules made thereunder anything is liable for confiscation or any person is liable to a penalty such confiscation or penalty may be adjudged - (a).................................................... (b)................................................. According to the assessee since the liability for penalty is under Section 11AC and not under a Rule made under the Act the officer will get jurisdiction only after the amendment to Section 33. 6. If we examine the scheme of Sections 11A and 11AC we will find that the above contention has no merit at all. The relevant portion of Section 11A reads as follows :- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances referred in the sub-section to show cause as to why he should not pay the amounts specified in the notice. Sub-section (2) of Section 11A provides as follows :- 11A(2) - [Central Excise Officer] shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. Sub-sections (2A) and (2B) refer to the procedure to be followed by the Central Excise Officers. Section 11AC which provides for the penalty for short-levy, or non-levy of duty in certain cases reads as follows :- Where any dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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