TaxTMI 
TaxTMI 
2009 (11) TMI 293
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....eged to have been evaded, or discretion to impose less penalty or no penalty was vested in the authorities under Section 1 of the Act?" 3. Tax Appeal No. 869 of 2007 is filed by the Commissioner, Central Excise, Ahmedabad I, Ahmedabad. This appeal is admitted on 17-1-2008 and following substantial question of law was formulated by this Court:- "Whether or not in view of Section 1lAB inserted with effect froth 28-9-1996 vide Section 76 of Finance (No. 2) Act, 1996 (33 of 1996) interest is leviable on the amount of Central Excise duty eavded for a period sub sequent 1028-9-1996 till 11-5-2001 ?" 4. Heard Mr. Hardik Modh, learned advocate appearing for the as sessee and Mr. Ankit Shah for Mr. Y.N. Ravani, learned Standing Counsel for the Revenue, in both the appeals. 5. The brief facts giving rise to the present Tax Appeals are that the assessee is engaged in manufacture of clearance of chemicals like Sodium Cynate, Cuprous Chloride, B.D.S.A., etc. falling under Chapter Head Nos. 28 & 29 of the Schedule to the Central Excise Tariff Act, 1985, and had a registration under the Central Excise Act, 1944. On the basis of Special Intelligence information, the Unit of the assesse....
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.... to Section 11A(2B) of the Act. Merely because somebody has paid the evaded duty by re sorting to clandestine removal, prior to issue of the show-cause notice, waiver of penalty should not be justified as the same will make the evasion risk-free and will treat the evader more kindly than the genuine tax payer, which is neither warranted nor envisaged. The Tribunal, however, has accepted the submission of the assessee to the effect that since the entire demand relates to the period of 1997 to 2000, no interest is leviable in respect of the demand prior to 11-5-2001. Accordingly, the Tribunal has confirmed the levy of penalty and set aside the order with regard to charging of interest under Section 1 of the Act. 9. Being further aggrieved by the order of the Tribunal, the assessee has come up before this Court raising the dispute with regard to confirmation of pen alty and the department with regard to deletion of the interest. 10. So far as the discretion to be exercised by the Additional Commissioner with regard to levy of penalty under Section 11 AC is concerned, the issue has no longer remained res integra. The Apex Court in its decision in the case of Union of Indi v. Dhar....
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.... the Appellate Tribunal or, as the case may be, the Court, then for the purposes o this Section the duty, as reduced or increased, as the-case-may be-shall be taken into account. "11AC Penalty for Short levy or non levy of duty in certain cases:- Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any willful: mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of.duty, the-person who is liable-to pay duty as- determined under sub-section (2) of Section 11 A, 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 percent o the duty so determined. Provided further that the benefit of reduced penalty under the first ....
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....brics Private Limited, 2009(238) E.L.T. 209, the Court took the view that it is appropriate to notice that the period in question is 28-7-2001 to 28-2-2002 and there is no dispute that the proviso added by the Act No. X of 2000 is made applicable with effect from 12-5-2000, which provides that an amount equal to 25% of the amount of duty of excise be paid as penalty if the amount of duty of excise is paid within 30 days from the date of communication of the order by the Central Excise Officer. In that case, the order in original also imposes penalty which is equivalent to the amount of duty of excise assessed by the adjudicating authority. The assessee was, however, not given any option as to whether he wants to pay the duty within 30 days front the date of the adjudication order. The Court, therefore, took the view that the conclusion reached by the Tribunal that the assessee was liable to pay penalty to the extent 25% of the amount of duty of excise demanded by the officer concerned. While arriving at this conclusion, the Court has also considered the decision of the Apex Court in the case of Dharamendra Text (supra) and observed that the provisos first and second which were adde....