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TMI Blog2009 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... the department." At the outset we may state that in CEA No.9 of 2006 titled Commissioner of Central Excise, Chandigarh vs. M/s.Him Chemicals & Fertilizers Ltd. the identical question of law was involved and we had decided the case in favour of the revenue. This Court on a conjoint reading of Section 11AC of the Act held that penalty can be imposed even if the excise duty is deposited at the threshold before the issuance of show cause notice. The facts of the present case are that the preventive staff of the Central Excise Commissionerate, Chandigarh visited the factory premises of the assessee on 11.9.2003. It was found that raw material i.e. Caustic Soda lye was only weighing 28.392 MT whereas as per the books it should have been 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall also be liable to pay a penalty equal to the duty so determined: Provided that where such duty as determined under sub-section(2) of Section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty-five per cent of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty determined to be payable is reduced or inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The question as to whether penalty should be imposed or not is a question of fact. Since this question has not been determined by the Commissioner (Appeals) or the Tribunal whose decisions are based only on the consideration that the excise duty was deposited prior to the issuance of the show cause notice, we set-aside the orders of the Commissioner (Appeals) and the Tribunal and remand the case back to the Commissioner (Appeals) for fresh decision on the issue of penalty after determining the question whether the non-payment of duty in the present case was on account of fraud, collision or any willful mis-representation or suppression of facts or contravention of any of the provisions of the Excise Act or the Rules made thereunder with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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