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TMI Blog2016 (5) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... o SSI exemption during 2009-10. By not discharging the appropriate Central Excise duty, the Central Excise Rules have been violated as per the penal provisions contained in Rule 25 (1) (a) & (d) of the Central Excise Rules, 1944. The conduct of the appellant by not resorting to payment of Central Excise duty during the relevant period indicates intent to evade Central Excise duty which could have escaped had it not been detected by departmental officers. Therefore, the provisions contained in Section 11A (2B) of the Central Excise Rules, 1944, applicable at the relevant time were not applicable to the case of the appellant. At the same time it is observed that penalty imposed by the lower authorities is not equivalent to the 100% of the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest was paid. That appellant is not agitating the issue on merits but has filed this appeal to contest penalty of ₹ 3,08,200/- imposed by the adjudicating authority under Rule 25 (1) (a) and (d) of Central Excise Rules, 2002 which has been upheld by the 1st appellate authority. 2.1 It is the case of the appellant that as per the provisions of Section 11A (2B) of the Central Excise Act, 1944, prevailing at the relevant time, if the short levy is paid by an assesse of its own or on being pointed out by the departmental officers and the amount is paid before the issue of show cause notice then no show cause notice is required to be issued for imposition of penalty. Ld. Advocate relied upon the case of M/s. Neha Confectionery Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No.8/2003-CE during the financial year 2009-2010. That appellant continued to avail SSI exemption under Notification No. 8/2003-CE for the period April, 2009 to June, 2009. However, the differential amount of ₹ 12,32,528/- alongwith interest was paid by the appellant on being pointed out by the Department. It is argued by the appellant that their case is covered under the provisions of Section 11A (2B) of the Central Excise Act, 1944 applicable at the relevant time and no penalty is attracted. It is observed from explanation 1 to Section 11A (2B) of the Central Excise Act, 1944 applicable at the relevant time, that the provisions contained in this sub-section were not applicable to cases where short levy was for the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable to the case of the appellant. At the same time it is observed that penalty imposed by the lower authorities is not equivalent to the 100% of the duty sought to be evaded by the appellant. Penalty imposed is roughly 25% of the duty sought to be evaded and is justified. Reliance placed by the appellant on the case law Neha Confectionery Pvt. Ltd. Vs. CCE, Kolkata-VII (supra) is not applicable to the present facts of the case because in the relied upon case law, penalty was sought to be imposed under Section 11AC of the Central Excise Act, 1944 and not under Section 25 (1) (a) (d) of the Central Excise Rules, 2002. 5. In view of the above observations, appeal filed by the appellant is dismissed. (Operative part of the order alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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