2008 (4) TMI 599

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....f show-cause notice. 2. Appellant-Revenue submitted that penalty should have been imposed in view of the following decisions : (i)      Commr. of Central Excise, Guntur v. Andhra Cements Ltd. - 2007 (216) E.L.T. 362 (A.P.) ; (ii)    Commr. of Central Excise & Cus., Aurangabad v. Innotech Pharmaceuticals Ltd. - 2007 (216) E.L.T. 515(Bom.) ; (iii)   Commr. of Central Excise, Delhi-III v. Machino Montell(I) Ltd. - 2006 (202) E.L.T. 398 ( P & H ) = 2006(4) S.T.R. 177 (P&H). (iv)   CCE & C, Aurangabad v. Padmashri V. V. Patil S. S. K. Ltd. - 2007 (215) E.L.T. 23 (Bom.) ; (v)     CCE & C, Aurangabad v. Bageshwari Sahakari Sakhar Karkhana Ltd. - ....

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....v. Innotech Pharmaceuticals Ltd. - 2007 (216) E.L.T. 515 (Bom.) ; (iii)   Union of India v. T. P. L. Industries Ltd. - 2007 (214) E.L.T. 506 (Raj.) ; (iv)   Commr. of Central Excise, Mangalore v. Shree Krishna Pipe Industries - 2004 (165) E.L.T. 508 (Kar.) ; (v)     M/s Tata Steels Ltd. v. C.C.Ex., Jsr - Tribunal's Order No. S-280/A-361/Kol/08 dated 20-3-08 ; (vi)   Commr. of Central Excise, Delhi III v. M/s. Machino Montell (I) Ltd. and Another - C.E.A. No. 13 of 2005 = 2006 (202) E.L.T. 398 (P&H) = 2006(4) S.T.R. 177 (P&H) 4. Heard both sides and perused the case records. It was noticed from Paras 18, 22 & 23 of the order of adjudication that the system of costing was g....

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....ing the provisions of Section 11A (2B) and 11AC together, a perusal of the above provision, shows that the said : '7.      provision incorporates liability to pay penalty in the situations mentioned therein. Once a case is covered by the situation mentioned in the Section, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section'. '9.      In view of the above, applicability of Section 11AC is not excluded at the threshold merely on deposit of the amount after having been caught and before the issue of show cause notice.'" With the assistance of the learned Counsel representing both the p....

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....lower rate than cent per cent of the duty evaded. Under the proviso added by amendment in the year 2000, the penalty can be 25% if the duty as determined by Excise Officer is paid within 30 days from the date of determination. But even in that region, there does not appear to be any discretion to impose penalty less than 25% of the duty so determined'. 7. Considering the scheme together, it is evident that interest chargeable u/s. 11AB is a sort of civil liability of the assessee, who has failed to pay the duty or who has short paid the duty. This is irrespective of the fact whether such non-payment/short payment is innocent or mala fide. So far as penalty u/s. 11AC is concerned, it is certainly a provision, penal in nature. This is....

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....s imposable, was a decision of the Tribunal at Bangalore dated 13-11-2002. Taking into consideration the hierarchy of authorities under the Central Excise Act, 1944 i.e. Assessment Officer conducting enquiry and determining the duty evaded or short paid, Commissioner (Appeals) and thereafter CESTAT, it can safely be said that this was a decision regarding the non-payment of duty of the period prior to insertions by Amendment Act No. 14/2001 with effect from 11-5-2001 by which sub-sections (2A), (2B) and (2C) are inserted in the main Act. Naturally, the Explanation (1) to sub-section (2B), reproduced hereinabove, was neither on the statute book nor was under consideration before the Tribunal or before the Hon'ble the Supreme Court. If the ef....