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TMI Blog2024 (6) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... 696/- along with interest of Rs.3,43,918/- and informed the department requesting for waiver of show-cause notice in terms of Section 11A (2B) of the Central Excise Act, 1944. Later, a show-cause notice was issued proposing penalty under Section 11AC of the Central Excise Act, 1944 and Rule 25 of the Central Excise Rules, 2002. This show-cause notice was adjudicated by the Original Authority rejecting the request for waiver of show-cause notice under Section 11A(2B), Explanation 1 wherein it is stated that waiver of show-cause notice is not applicable in those cases where short levy is on account of fraud, collusion, or any willful misstatement or suppression or any contravention of this act and the rules made thereunder to evade payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944 is a pre-requisite for imposition of penalty. Since the duty has not been determined and confirmed by the authorities, the question of penalty equivalent to the duty determined does not arise. Reliance is placed on the following decisions: i. CCE vs. Geneva Fine Punch Enclosures Ltd.: 2011 (267) ELT 481 (Kar.) ii. Nexteer Automotive India Pvt. Ltd. vs. The Commissioner of Central Excise and Service Tax: 2023 (9) TMI 63 - CESTAT, Bangalore. iii. M/s. Talisma Corporation Pvt. Ltd. Vs. CCE, Bangalore: 2017 (10) TMI 785 - CESTAT, Bangalore. 3. The learned Authorized Representative reiterating the findings of the Commissioner (A) submitted that Section 11AB Explanation 1 is very clear and hence, Section 11AC was rightly im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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:" As seen above, where any duty of Excise has not been levied or paid or has been short levied or short paid by reasons of collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of the Act or the Rules made there under with an intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section 2 of Section 11A shall also be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore dismissed." 6 In the case of Commissioner vs. Geneva Fine Punch Enclosures Ltd. (supra) the Hon'ble High Court of Karnataka has held that: "3. .......................................... On being pointed out, the assessee paid the said duty and also paid the interest there on. Thus, the assessee voluntarily paid the duty and interest and intimated the same with a request to waive the issue of show cause notice. It is, thereafter, a show cause notice came to be issued to the assessee on 10-3-2005. The assessee sent a reply contending that they have already paid the duty and penalty and therefore, they are not liable to pay the same. However, the Assessing Authority i.e., Assistant Commissioner, relying on the judgment of the tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim. It is, thereafter, under Section 11(A)(2) the Central Excise Officer after considering the representation, if any, made by the person on whom notice is served, determining the amount of duty of excise due from such person and thereupon such person shall pay the amount so determined. Section 11A(C) makes it clear that the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A. 6. Therefore, the determination of liability to pay duty is a condition precedent for imposing penalty. If after demand of duty if the assessee without contesting the claim voluntarily pays the duty and interest payable thereon for the delay in payment of duty on the stipulated day, the q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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