9911796707
TMI Blog2007 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaikwad, JJ. [Judgment per: N.V. Dabholkar, J. (Oral)].-1. We have admitted the appeal on following substantial question of law vide our order dated 23-4-2007. "whether there is any discretion under Section 11AC of the Central Excise Act, 1944 for imposing penalty less than an amount equivalent to evaded excise duty ?" 2. By order in original dated 28-1-2005, the Commissioner, Central Excise and Customs, Aurangabad, confirmed the notice of demand forRs. 38,68,582/-, imposed equal penalty under Section 11AC of the Central Excise Act, 1944 and also charged interest under Section 11AB of the Act, upon the assessee. Penalty of Rs. 25,000/- is also imposed upon Senior Officer (Commercial) of the assessee. The assessee took the matter before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty less than 100 per cent (or 25 per cent in case the determined penalty is paid within thirty days), as under Section 11AC of the Act. For the reasons recorded in the judgment in First Appeal No, 240 of 2007, by particular reference to explanation (1) to Section 11A(2-B), we have also recorded that the assessees whose cases are covered by existence of circumstances attracting Section 11AC, are concerned, they do not have facility or liberty to pay short paid or unpaid duty, on the basis of self ascertainment and without waiting for show cause notice and adjudication as under Sections 11A(1)(2). Therefore, payment of short duty/unpaid before issuance of show cause notice does not exempt an assessee from payment of penalty under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereon under Section 11AB, both being payable within thirty days from the determination Certainly, payment of duty before issuance of show cause on 5-12-2001 is a payment of duty before expiry of thirty days, since the date of adjudication. However, on record, there is nothing to show that the interest charged .under Section 11AB was also paid within thirty days from the date of the order of the Commissioner, i.e. on or before 27-2-2005. Advocate Shri Godsay states that his clients have also paid interest and considering that aspect, CESTAT had granted stay to the execution of the order, to the extent, of penalty imposed. 7. While allowing the appeal of the department to the extent that penalty as under Section 11AC will have to be impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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