2017 (3) TMI 772

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..... d in favor of appellant.
Shri P.K. Choudhary, Member(Judicial) Shri Arvind Baheti, C.A. for the Appellant Shri S.Dasgupta, DC(AR) for the Revenue ORDER Per: Shri P. K. Choudhary 1. Briefly stated the facts of the case are that the appellant is engaged, inter alia, in the manufacture of plastic tanks and rigid PVC pipes falling under Chapter 39 of Central Excise Tariff Act, 1985. During the month of October, 2008, the appellant had manufactured and cleared 486 pieces of rigid PVC pipes without payment of Central Excise duty by availing benefit of exemption Notification No.6/2006-CE dated 01.03.2006 on the strength of a Certificate issued by the District Magistrate, Nadia, West Bengal for execution of drinking water supply project. Th .....

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..... ation of the adjudication order. On appeal the Commissioner(Appeals) modified the demand to ₹ 3,08,990/- along with interest and penalty. Hence the present appeal. 2. Ld.Consultant appearing on behalf of the appellant company submits that on 09.12.2009 during the course of personal hearing they have submitted extract of the RG-23A Part-II Sl.No.162 dated 07.11.2009 evidencing a debit of ₹ 3,08,990/- together with interest payment challan for ₹ 41,930/-. He submitted that Education Cess and Higher Education Cess was not to be calculated on the amount of duty. Ld.Counsel further submits that the penalty calculated @ 25% of the amount of ₹ 3,18,260/- as confirmed vide the Order-in-Original was paid within 30(thirty) da .....

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..... which was not payable as it was not to be calculated on the amount confirmed as it is not a duty of excise. I find that the Commissioner(Appeals) accepted the appeal of the appellant and modified the demand from ₹ 3,18,260/- to ₹ 3,08,990/- and interest. I agree with the submission of the ld.Counsel appearing on behalf of the appellant that the Adjudicating Authority had given option to pay penalty, 25% of duty as determined. Revenue has not challenged the Adjudication order and therefore, the order of the Adjudicating Authority on this issue would sustain. In any event, the expression "subject to the provisions of Section 11AC of the Act" in Rule 25(1) of Central Excise Rules, 2002 would make it clear that the option .....

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