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TMI Blog2012 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... cise and Service Tax Appellate Tribunal (tribunal, for short) dismissing the rectification application filed by the appellant. The appellant had earlier impugned order dated 1st July, 2010 dismissing their appeal, before this Court in CEAC No. 4/2011. The said appeal was dismissed by the High Court vide order dated 25th January, 2011, inter alia, recording as under:- In this appeal preferred by the appellants the only issue which is raised relates to penalty imposed upon the appellants which is equal to duty under Section 11AC of the Central Excise Act, 1944. The order of the Tribunal, however, does not show that such a contention if made was dealt with. Learned counsel for the appellant makes a statement at the Bar that the issue was specifically raised. If that is so, it would be appropriate for the Tribunal to deal with the same in the first instance. In these circumstances, we permit the appellant to move an application under the appropriate provisions of law seeking review of the order on the aforesaid term. While granting the aforesaid liberty, this appeal is dismissed. 2. Learned counsel for the appellant has drawn our attention to the order in original dated 5th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined: [Provided that where such duty as determined under sub-section (2) of section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty-five per cent of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account: Provided also that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appeal also the appellant did not question or challenge the order in original for failure to give the option or make the computation to enable the appellant to make payment under Section 11AC of the Act. The appellant challenged the order in original on merits, questioning the duty liability, interest and penalty. The appeal was dismissed vide order dated 20th December, 2004. Thereafter, the appellant filed the second appeal before the tribunal on or about 18th March, 2005. At that stage also the appellant did not deposit the duty demand or the interest. An application for waiver of pre-deposit was moved. The appellant had paid Rs.2.5 lacs during investigation. The tribunal asked the appellant to make pre-deposit of Rs.4 lacs. At the first appellate stage, the appellant had made payment of Rs.1.5 lacs. Thus, in all the appellant had deposited Rs.8 lacs, out of the total duty demand of Rs.17,88,262/-. As noticed above, the appeal of the appellant was dismissed on merits vide order dated 1st July, 2010. 7. We have noted the aforesaid facts in view of the legal contention raised by the appellant that benefit of Section 11AC of the Act has been denied to him, because of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the respondent had issued instructions vide file No. 208/07/2008-CX-6 dated 22nd May, 2008, which reads as under:- It is seen that these provisos to Section 11AC of the Act have been specifically inserted to ensure speedy recoveries of the disputed amount. It is an incentive given to the assessee that if he pays the duty amount along with interest, the penalty is reduced to 25% of the duty. This provision is beneficial to the Department as well as the assessee as rightly pointed out by Delhi High Court and therefore, the assessee should be made aware of the option available to him. 11. Subsequently, the tribunal issued circular No. 898/18/09-CX dated 15th September, 2009. For the sake of convenience, paragraphs 2 and 3 of the said circular are reproduced:- 2. The matter has been examined. The provisions relating to reduction of penalty to 25% are contained in proviso (1) to (4) of Section 11AC. In terms of proviso (1) and (2), a penalty imposed under Section 11AC can be reduced to 25% on fulfillment of following conditions. i. Duty determined under Section 11A(2) and interest payable thereon has been paid within 30 days. ii. The said period of 30 days is calculated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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