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TMI Blog2021 (12) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... to deduct the penalty as they are contesting the matter before the appellate authority, sanction the refund from the amount after deducting the confirmed duty, interest and 25% penalty. The amount deducted by the Assistant Commissioner was deposited and retained by the department right from the day it was deposited till the refund was sanctioned. Therefore, at the time of passing the adjudication order on demand case and even up to the 30 days from the date of such order the amount of confirmed duty, interest thereon and 25% penalty stands deposited with the department. Therefore, there is no reason to deny the benefit of a reduced penalty of 25% to the appellant even though the appellant had not opted but the fact remains that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 62,25,479/- has been imposed. Since the appellant had already paid more than the duty and the interest to be deposited above and option to pay reduced penalty of 15,56,370/- @ of 25% of 62,25,479/- was given to the appellant vide OIO and penalty of ₹ 5000 under Rule 27 of Central Excise Rules, 2002 has been imposed. Thereafter, the appellant filed a refund claim of the differential amount already deposited by them vide their letter dated 18.05.2017. The said refund claim was processed and sanctioned by the Refund Sanction Authority vide OIO dated 14.08.2017 wherein the appellant was eligible for refund of ₹ 1,46,43,377/- after appropriating the amount of Central Excise Duty of ₹ 62,25,479/- along with interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve said OIO. The appellant only opted to pay the reduced penalty of 25% of 62,25,479/- after lapse of 30 days therefore, the sanctioning authority erred in not following the basic criteria for availing the benefit of reduced penalty under section 11AC (1) (e) of Central Excise Act, 1944 and allowed the appellant to pay the reduced penalty at the rate of 25% even after the lapse of 90 days against the mandated 30 days. The learned Commissioner (Appeals) accepting the aforesaid grounds of appeal allows the revenue's appeal. Therefore, the present appeal filed by the appellant. 2. Shri S.K Mathur, learned Counsel appearing on behalf of the appellant submits that the Learned Assistant Commissioner has rightly deducted the confirmed demand, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced by the amount of 100% penalty instead of 25% penalty. I find that the Adjudicating authority while sanctioning the refund even though the appellant informed not to deduct the penalty as they are contesting the matter before the appellate authority, sanction the refund from the amount after deducting the confirmed duty, interest and 25% penalty. The amount deducted by the Assistant Commissioner was deposited and retained by the department right from the day it was deposited till the refund was sanctioned. Therefore, at the time of passing the adjudication order on demand case and even up to the 30 days from the date of such order the amount of confirmed duty, interest thereon and 25% penalty stands deposited with the department. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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