2009 (8) TMI 1063

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....scaped and appropriated the amount paid by the respondent. The adjudicating authority, did not impose any penalty under the provisions of Section 11AC of Central Excise Act, 1944 on the respondents but imposed a penalty of Rs. 15,000/- on the Director of the respondent company. Aggrieved by such an order, revenue preferred an appeal to learned Commissioner (Appeals) only on the ground that the Adjudicating Authority should have imposed penalty under Section 11AC. Learned Commissioner (Appeals) after considering the submissions made by both sides upheld the OIO and rejected the appeal filed by the revenue. Hence revenue is in appeal before us. 3. Learned JCDR appearing on behalf of the revenue would draw our attention to the letter dated 31-3-05 of the respondent requesting for waiver of show cause notice. It is her submission that the Managing Director of the respondent company and other employees have clearly admitted the clandestine removal of the goods. It is her submission that once it is an admitted position that there is a clandestine removal of the goods automatically the provisions of Section 11AC will be applicable and equal penalty is liable to be charged. For this propo....

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....rt-paid or erroneously refunded by reason of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act of the rules made there under with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, (as if) for the words {"one year"}, the words "five years" were substituted : Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of {one year} or five years, as the case may be. {(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or the rules made there under with intent to evade payment of duty, by such persons or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer may pay duty in full or in part as may be accepted by him, and the interest payable thereon under Section 11AB and penalty equal to twenty-five ....

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.... made thereunder with intent to evade payment of duty. Explanation 2. - For the removal of doubts it is hereby declared that the interest under Section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer but for this sub-section (2C). The provisions of sub-section (B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.} It can be seen from the above reproduced relevant provisions of Section 11A that Section 11A(1) mandates that the authorities should issue a notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid. The proviso to Section 11A(1) also contemplates about the extending the period from one year to five years, if the said duty has not been paid or short paid or has been short levied or short paid by reason of fraud, collision or any willful misstatement or suppression of facts or contravention of any provisions of the Act or the Rules made there unde....

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....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 fact 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 11A, 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 shall be twenty-five per cent of the duty so determined : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purpose of this section, the duty as reduced or increased, as the case may be, shall be taken into account : Provided also that in case where the duty determined to be payable is incre....