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TMI Blog2008 (4) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant-Revenue submitted that penalty should have been imposed in view of the following decisions : (i) Commr. of Central Excise, Guntur v. Andhra Cements Ltd. - 2007 (216) E.L.T. 362 (A.P.) ; (ii) Commr. of Central Excise Cus., Aurangabad v. Innotech Pharmaceuticals Ltd. - 2007 (216) E.L.T. 515(Bom.) ; (iii) Commr. of Central Excise, Delhi-III v. Machino Montell(I) Ltd. - 2006 (202) E.L.T. 398 ( P H ) = 2006(4) S.T.R. 177 (P H). (iv) CCE C, Aurangabad v. Padmashri V. V. Patil S. S. K. Ltd. - 2007 (215) E.L.T. 23 (Bom.) ; (v) CCE C, Aurangabad v. Bageshwari Sahakari Sakhar Karkhana Ltd. - 2008 (222) E.LT. 204 (Bom.) ; (vi) Commr. of Central Excise, Ludhiana v. Omkar Steel Tubes (P) Ltd. - 2008 (221) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Mangalore v. Shree Krishna Pipe Industries - 2004 (165) E.L.T. 508 (Kar.) ; (v) M/s Tata Steels Ltd. v. C.C.Ex., Jsr - Tribunal s Order No. S-280/A-361/Kol/08 dated 20-3-08 ; (vi) Commr. of Central Excise, Delhi III v. M/s. Machino Montell (I) Ltd. and Another - C.E.A. No. 13 of 2005 = 2006 (202) E.L.T. 398 (P H) = 2006(4) S.T.R. 177 (P H) 4. Heard both sides and perused the case records. It was noticed from Paras 18, 22 23 of the order of adjudication that the system of costing was governing factors for levy of penalty. Since different system of costing resulted with the duty demand, Respondent has no dispute in respect of duty demand which was paid on discovery. The ld. Adjudicating Authority has failed to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion mentioned in the Section, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section . 9. In view of the above, applicability of Section 11AC is not excluded at the threshold merely on deposit of the amount after having been caught and before the issue of show cause notice. With the assistance of the learned Counsel representing both the parties, we have gone through Sections 11A, 11AA, 11AB and 11AC of the Central Excise Act, 1944. It is evident that Section 11AA enables the department to charge interest if, even after determination u/s. 11A(2) of duty short-paid, the assessee does not pay the duty so determined within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se penalty less than 25% of the duty so determined . 7. Considering the scheme together, it is evident that interest chargeable u/s. 11AB is a sort of civil liability of the assessee, who has failed to pay the duty or who has short paid the duty. This is irrespective of the fact whether such non-payment/short payment is innocent or mala fide. So far as penalty u/s. 11AC is concerned, it is certainly a provision, penal in nature. This is because, it comes into play only when non-payment/short-payment is result of fraud, collusion or any wilful mis-statement/suppression of facts or contravention of any of the provisions of the Act/Rules on the part of the assessee, with intent to evade payment of duty. There is a sense of deliberate evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that this was a decision regarding the non-payment of duty of the period prior to insertions by Amendment Act No. 14/2001 with effect from 11-5-2001 by which sub-sections (2A), (2B) and (2C) are inserted in the main Act. Naturally, the Explanation (1) to sub-section (2B), reproduced hereinabove, was neither on the statute book nor was under consideration before the Tribunal or before the Hon ble the Supreme Court. If the effect of Explanation is taken into consideration, the liberty to pay evaded excise duty as may be ascertained by Central Excise Officer u/s. 11A(2) or on the basis of duty ascertained by himself, was not available to the assessee prior to 11-5-2001. We must say that by insertion of sub-sections (2A) to (2C) and mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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