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TMI Blog2011 (1) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable and hence, set aside to the extent. As regards the contention of the respondent that since they have already paid the entire amount of duty involved in the case before the issuance of the show-cause notice they are liable to pay only 25% of the duty amount as penalty in view of the judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI) - As this judgment of the Hon'ble Delhi High Court and to give option to the respondent was not before the lower authorities case is remanded to the lower adjudicating authority for the limited extent to decide the quantum of penalty under Section 11AC. - E/2499/2010 - - - Dated:- 12-1-2011 - Shri S.K. Gaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting to Rs. 33,955/- was paid even before the issuance of the show-cause notice. Revenue filed appeal against the Commissioner (Appeals) and this Tribunal vide its order No. A/1034/C-IV/SMB/07 dated 05/07/2007 upheld the Commissioner (Appeals) order. The department challenged this order before the Hon'ble Supreme Court. The Hon'ble Supreme Court remanded the case while deciding case of M/s. Dharmendra Textile Processors and Ors remanded this case to the Tribunal for its disposal in the light of the said decision. 4. The contention of the Revenue is that the case was earlier decided and penalty under Section 11AC was set aside relying upon the Larger Bench decision in the case of Machino Montell (I) Ltd. (supra) by both the authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise vs. Greaves Cotton Limited 2008 (225) ELT 198 wherein it has been held that penalty is not imposable where the assessee has not suppressed that CENVAT credit was not reversed to the extent of shortage. 6. Learned JDR in his rejoinder submitted that cross-objection requires to be filed within 45 days from the receipt of the appeal memo by the respondent and the respondent have not filed the cross-objection within the time limit prescribed under Section 35B of the Central Excise Act, 1944. Therefore, the same should not be taken into account and the findings of the Commissioner (Appeals) that the respondent have not disputed the case on merits should be taken note of and the appeal of the department be allowed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontell (I) 2004 (168) ELT 466 (CESTAT- LB) where it has been held that when the duty is paid before the issue of show-cause notice, the question of levy of penalty under Section 11AC does not arise. I find that in the present case duty was debited on 2.5.2005 where as show-cause notice has been issued on 19.08.2005. The ratio of the decision is therefore squarely applicable in the present case. The imposition of penalty of Rs. 33,955/- under Section 11AC is set aside. However, the appellants are liable to pay interest of Rs. 15,377/- as the period under dispute is after 12.5.2001 i.e. after enactment of amended Section 11AB. The duty demand of Rs. 13,680/- and recovery of interest of Rs. 15,377/- is upheld." 8.1 The only ground on which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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