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TMI Blog2015 (11) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... e neither any notice was issued under Section 11A(1) nor Central Excise Officers has determined the duty short paid / not paid under subsection (2) of Section 11A as is evident from the proceedings that no show cause notice under Section 11A(1) was issued nor any adjudication in respect of short payment or non payment of duty has been made, therefore ingredients required under Section 11AC inasmuch as issuance of show cause notice under Section 11A(1) and determination of duty under Section 11A(2) was not carried out by the department, therefore penalty under Section 11AC could not have been imposed. - penalty under Rule 173Q, I find that since the appellant has not paid duty or availed Cenvat Credit wrongly they have contravened provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant admittedly paid entire amount of Cenvat Credit suo-moto before the issuance of show cause notice. On payment of such duty, the issued as regard the payment of duty attained finality and no show cause notice was issued with regard to short payment of duty. However, show cause notice dated 13/5/2005 was issued proposing only demand and interest on the duty so paid under Section 11AB, penalty under Rule 173Q of Central Excise Act, 1944, read with Rule 25 and under Rule 13 of Cenvat Credit Rules, 2002. Penalty equivalent to amount of duty under Section 11AC. Show cause notice was adjudicated by Order-in-Original dated 30/10/2005 wherein following order was passed: 1. M/s. Precious Plasto Packing Pvt. Ltd are ordered to pay the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order. 5. I have carefully considered the submissions made by both sides and perused the record. 6. It come to the notice regarding the short payment, non payment of duty during the audit of the appellants record as a result appellant suo moto paid the entire duty and not contesting the same. The Revenue has not issued any show cause notice for demand of duty and appropriation of the amount already paid by the appellant. Provision of penalty imposed under Section 11AC which is reproduced below: Section 11AC in the Central Excise Act, 1944 1[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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation.For the removal of doubts, it is hereby declared that (1) the provisions of this section shall also apply to 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. From the above Section 11A(2), it is seen that under this section duty is determined by the Central Excise Officers after considering representation made by the person on whom notice is served under subsection(1). In the present case neither any notice was issued under Section 11A(1) nor Central Excise Officers has determined the duty short paid / not paid under subsection (2) of Section 11A as is evident from the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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