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TMI Blog2012 (11) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Admittedly, the duty demand on the ground of clandestine removal has been confirmed against the respondent and the appeal against aforesaid confirmation has been dismissed by CESTAT. Therefore, in view of the above provisions, the respondent is liable to pay the penalty equal to the amount of duty confirmed against them. Coming to the proviso 1st & 2nd, on reading of the aforesaid provisos, it is apparent that benefit of reduction of penalty to 25% can be availed by the assessee provided he deposits the duty demand confirmed against him along with interest and 25% of the duty as penalty within 30 days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. Against this order of the Commissioner (Appeals), this appeal is filed by the Revenue. 2. Heard both the sides. 3. Shri R.K. Verma, DR assailed the impugned order pleading that just because of a part of the duty has been deposited before the issue of show cause notice, this would not be ground for reduction of penalty imposable under Section 11AC to that extent and that in this regard, he relies upon the Apex Court s judgment in the case of Dharamendra Textile Processors reported in 2008 (231) E.L.T. 3 (S.C.) and also in the case of Rajasthan Spinning Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.). He, therefore, pleaded that the impugned order of the Commissioner (Appeals) reducing the penalty to Rs. 2,66,272 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. Section 11AC of the Central Excise Act, 1944 is reproduced thus :- 11AC. PENALTY FOR SHORT-LEVY OR NON-LEVY OF DUTY IN CERTAIN CASES. [11AC. Penalty for short-levy or non-levy of duty in certain cases. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement 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, 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 determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.] 6. Bare reading of the above provisions indicate that in the cases in which the excise duty has been paid or short paid by reason of fraud, collusion or any wilful mis-statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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