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TMI Blog2013 (8) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... r Central Excise, Chandigarh [ 2004 (169) E.L.T. 345 (Tri.-Del.) shortage of Ingots was found on physical verification and admitted by the Director and the duty involved was debited. Penalty was imposed - Facts are almost similar in this case. Decided in favor of Revenue. 25% of Penalty paid – Held that:- Correct as per legal provisions and Board’s circular No.831/08/2006 Dt. 26.07.2006 - 100% penalty should be levied - Once respondent have exercised the option to pay 25% penalty within specified time it is correct in view of facts and legal provisions. Decided against the Revenue. - E /737/2011-ST[SM] - FINAL ORDER NO.56432/2013 - Dated:- 5-4-2013 - Manmohan Singh, J. For the Appellant : Sh A K Jain, JCDR. For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.52,493/- under Section 11A (2) of the Act and appropriated the same from amount already deposited by the respondents. He imposed penalty of Rs.52,493/- under Section 11AC of the Act and ordered for the appropriating Rs.13,123/- already deposited by the respondents. Appellant being aggrieved from the order passed by the Assistant Commissioner filed an appeal before Commissioner (appeal) to upheld the confirmation of the demand and reduce the amount of penalty only to the extent of 25 % of the amount of duty which was already paid by the respondents and appropriated by the Adjudicating Authority. 5. That learned Commissioner (Appeals) decided the case vide Order in Appeal No. 239/CE/Alld/2010 issued vide C. No. 142/CE/Appl/2010/6078 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of 1963 ) Provided that where any duty of excise has not been levied or paid or has been short- levied or short- paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub- section shall have effect, 3[ as if (5 xxx),] for the words" six months", the words" five years" were substituted. Explanation.- Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be. Section 11AC in The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10) of section 11A, then, the amount of penalties and interest payable shall stand modified accordingly and after taking into account the amount of duty of excise so modified, the person who is liable to pay duty as determined under subsection (10) of section 11A shall also be liable to pay such amount of penalty or interest so modified. 8. That subject to the Taxation Laws (Amendment) Act, 2006, vide Boards circular no. 831/08/2006-CX dated 26/07/2006 F. No. 201/51/2004- CX 6 was issued to avoid litigation in on payment of duty and introduced an optional scheme for enabling voluntary payment of duty/penalty and interest by as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Rs.510/- totaling Rs.52,493/-. Proceedings were concluded by drawing a Panchnama. In this regard, the statement of Shri Shiv Pujan, Accountant of the party, was recorded on the spot on 03.11.09 (RUD 2) wherein he accepted the shortage of goods and content of the panchnama. Shri Shiv Pujan aforesaid Accountant of the company was again interrogated on 10.11.09 by the Superintendent (AE) Central Excise Allahabad under Section, 14 of the Central Excise Act, 1944. In his statement dated 10.11.09 (RUD 5), he again failed to explain the shortage in the stick detected on 03.11.09, admitted the contents of his earlier statement dated 03.11.09 and confirmed the payment of duty. Whereas from the fact of shortage of 32.174 M.T. of final product de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y : Rs.52493/= Shortage admitted by Party : Sh. Shiv Pujan , Accountant of Duty totally Rs.52493/= deposited on 04.11.2009 Deposited 25% of duty and as penalty on 05.02.2010 (i.e. Rs.13123/=) within 30 days of issuance of SCN Date of SCN : 08.01.2010 Board's Circular No.831/08/2006 Dt. 26.07.2006 10. In view of above, there is no force in departments appeal that considering this case of clandestine removal 100% penalty should be levied. He has not appreciated the Amendment brought vide Boards circular No. 831/08/2006 Dt. 26.07.2006. Once respondent have exercised the option to pay 25% penalty within specified time it is correct in view of facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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