TaxTMI 
TaxTMI 
2010 (1) TMI 600
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....f the Tribunal in the case of CCE, Gurgaon v. Machino Montell (I) Ltd. reported in 2004 (168) E.L.T. 466. 2. Facts in brief may be noticed as under. 3. The respondent is engaged in the manufacture of Aerated Water (Pepsi Brand) falling under Sub-Heading No. 2202.20 of the 1st Schedule appended to the Central Excise Tariff Act, 1985. The respondent is registered with Central Excise Department vide registration No. 23 of 1992 PNP. The respondent is availing Cenvat Credit Facility on Raw materials used in the manufacture of their finished goods. 4. On 17-1-2003, the officers of Ante Evasion Branch visited the (factory premises of the respondent and it was alleged that the respondent had not paid Central Excise Duty to the tune of Rs. 64,82,763/- on the excisable goods cleared against invoice No. 907 to 1145 dated 30-4-2001, in April 2001, though all the invoices were stamped as "Duty Payable". It was alleged that the said duty was liable to be paid by 5-5-2001 under Rule 173G(1)(a) of the Central Excise Rules, 1944 and since the respondent had failed to comply with the provisions of the above Rule, they had become liable to pay the outstanding amount alongwi....
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....als, who had been imposed personal penalties. Both the appeals came to be heard by the CESTAT, New Delhi and the same were accepted vide orders dated 7-7-2005 and 4-8-2005. 8. The Tribunal, while adjudicating upon the appeal filed by the Company vide order dated 7-7-2005 (Annexure A-2) held that where demand of duty stood paid by the Assessee before issuance of show cause notice, then no penalty can be imposed under Section 11AC and no interest can be demanded under Section 11AB. The Tribunal further found that though no interest was payable, however, since the assessee/respondent had paid the interest on its own, then the revenue had rightly accepted the same. The Tribunal further found that the Commissioner had worked out the interest at a flat rate of 24% per annum whereas per notification dated 13-5-2002 bearing No. 19/2002, the rate of interest stood reduced to 15%. The Tribunal thus set aside the demand with regard to differential amount of interest. 9. Similarly, while adjudicating the appeal filed by the four individuals, who had been inflicted with personal penalties, the Tribunal set aside the order-in-original by relying upon the order dated 7-7-2005. ....
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....06 reveals that in that case the assessee had not paid the entire duty amount before the issuance of the show cause notice and therefore, the issue raised therein was entirely different. 15. In the case in hand, it is an admitted fact that the entire Excise duty of Rs. 64,82,763/- as payable stood paid on 26-2-2003 by the assessee/respondent before the issuance of the show cause notice alongwith interest amount of Rs. 23,56,209/-. The show cause notice was issued on 8-4-2004 and as such the assessee/respondent had discharged his liability more than a year ago and could not be said to be defaulter of the Revenue. Still further, the Tribunal has held that since the Assessee had paid the entire payable Excise duty before the issuance of the show cause notice and therefore no demand qua interest would be raised by the revenue when the assessee has already paid the interest of over Rs. 23.00 lacs, which in itself shows the bona fide of the Assessee to discharge the liabilities under the Central Excise Act and Rules. Mere some delay in payment of payable excise duty, due to financial constraints being faced by the company, cannot be said to be an act of fraud or willful evasion,....
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....l Excise, Ludhiana v. Sigma Steel Tubes and Anr.). 8. We have heard learned Counsel for the parties and perused the record. 9. This Court while deciding CEA No. 13 of 2005 in the case of Commissioner of Central Excise, Delhi v. Machino Montell (I) Ltd. and Anr. (supra) remanded the matter to the Tribunal after discussing the provisions of Section 11(A)(C) and observed in the operative part of the judgment as under : Question will remain whether situation mentioned in Section 11AC exists, which has to be determined irrespective of the deposit of duty due, prior to issuance of notice. Since the question has not been determined by the Commissioner (Appeals) or by the Tribunal, whose decision are based on the only consideration of deposit, we set aside the order of the Commissioner (Appeals) and the Tribunal and remand the matter back to the Commissioner (Appeals) for a fresh decision on the question of penalty after determining the question whether the non-payment of duty in the present case at the relevant time, which was made up later, was on account of fraud, collusion or any willful mis-statement or s....