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TMI Blog2011 (8) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal raising the following substantial questions of law: (A) Whether the Tribunal is correct in holding that no penalty is leviable under Section 11AC of the Central Excise Act, 1944 if the duty has been paid subsequent to detection of evasion but before the issue of show cause notice? (B) Whether the Tribunal is correct in holding that penalty imposed under Section 11AC of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in Rashtriya Ispat Nigam Ltd. v. CCE, Vizag reported in 2004 (163) E.L.T. A53 set aside the penalty imposed on the ground that the facts of the case was squarely applicable to the said case. Being aggrieved by the above order, the present Civil Miscellaneous Appeal has been filed by the Revenue. 3. The issue, as to whether the penalty is automatic, in case if the duty is paid af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king materials in the conversion job work undertaken on behalf of their Unit at Paravai with intent to evade payment of duty, the extended period, the show cause notice also proceeds on the basis that the assessee had violated Rule 57Q(8) r/w 57S(2)/Explanation to Rule 57AB(1)(b)/Rule 57AB(1C) of the Central Excise Rules. The show cause notice further proceeded on the basis that the assessee had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for refund on the ground of entitlement of Modvat facility in the event of duty paid after the show cause notice was accepted. Hence the order of CESTAT making avilable such a benefit to the respondent/assessee for the entitlement of Modvat facility and consequently for refund of the duty already paid, after the show cause notice cannot be sustained. Accordingly, the question is answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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