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TMI Blog2014 (5) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the additional commissioner of Central Excise without going into merits of the case and passing the order in stereographical manner that now amount is paid hence, evidence are not required to be examined, irrespective of the fact that the amount is paid before the show cause notice for peace of mind and avoid any penal action against proprietor of proprietary firm ?" {B} "Whether in the facts and circumstances of the case, the respondent was justified in twice recovering excise duty on the same goods supplied to end user under Section 11A of the Central Excise Act, 1944 ?" {C} "Whether the CESTAT, Ahmedabad is correct in not gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, the Tribunal observed as under :" 5. I have considered the submissions made at length by both sides and perused the records. 6. On perusal of the records, I find that the appellant herein, on being pointed out by the Audit party, has paid the differential Central Excise duty worked out by the Audit party alongwith interest on 24.03.2010. It is also noticed from the records that the appellant has paid 25% of the amount of duty as paid on 19.04.2010. In my view, having discharged the entire duty liability, interest thereof and 25% of the amount of duty as penalty, the issue should have been closed by the authorities as per the provisions of Section 11A(2B) of the Central Excise Act, 1944. It is also noticed from the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, reduced the same to 25%. The Tribunal, in the impugned order, further clarified the issue and recorded that there shall be no further penalty against the appellant. Appellant has, however, raised two curious submissions - Firstly, he contended that the duty and penalty was deposited under duress and that therefore, the issues should have been examined on merits by the Tribunal. Second contention of the appellant was that having deposited the entire duty with interest, even before issuance of the show cause notice in terms of Section 11A(2B) of the Act, no show cause notice should have been issued. These two contentions are incongruent. If the stand of the appellant is that the duty was paid in full with interest, even before issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in this section, and the period of "one year" referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation 1 - Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short levied or was short paid or was erroneously refunded by reason of fraud, collusion or any willful 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." In this context, we wonder, when the appellant disputed the basic duty liability by filing appeals, he could avail of reduced penalty to 25% under Section 11AC of the Act. This question, however, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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