TaxTMI 
TaxTMI 
2013 (6) TMI 87
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....was served upon the appellant assessee on 8.7.2011 is reported to be delayed by 43 days. 3. In the affidavit explaining the delay it is stated that the file was misplaced due to staff of the counsel. It is stated that the delay was not deliberate and has been caused by way of bonafide mistake. A counter affidavit has been filed to the delay condonation application. The delay has been sufficiently explained and is accordingly condoned. The application is allowed. The appeal will be given regular number. 4. With the consent of parties, the appeal was heard:- 5. The short questions that arise for consideration in this appeal is whether the appellant will be entitled to benefit of First Proviso to Section 11 AC of the Central Excise Ac....
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....ected shortage of 8165 kgs of C.R.G.O. Electrical Sheet valued at Rs.18,77,950/-. 8. The appellant deposited the Central Excise Duty amounting to Rs.3,09,486/- on 6.8.2007 vide T.R. challan no.00786 dated 31.7.2007 (within a week) and informed the Superintendent (Central Preventive), Central Excise Commissionerate, Kanpur about the deposit. 9. A show cause notice dated 15.7.2008 was issued for imposing penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 15 (1) and (2) of the Cenvat Credit Rules, 2004. The assessee replied to the show cause notice dated 15.7.2008 alleging that there was no fraud, collusion or willful misstatement or suppression of facts. The Asstt. Commissioner, Central Excise by order dated 31.3.....
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....e, however, does not get an option, if an order is passed to deposit the penalty at 100%. The deposit under the second proviso at 25% would require an order of the Adjudicating Authority. The Delhi High Court left the question to be considered by the department to obviate the difficulty faced by the assessee. The relevant portion of the order of the Delhi High Court is quoted as below:- "22. The fact that the Assistant Commissioner levied an incorrect penalty left the Assessee with no option but to challenge it otherwise he would have had to pay the full penalty amount, which is statutorily not leviable, and then claim a refund of 75% excess penalty paid. Having rightly challenged the imposition, it cannot be said that the Assessee had n....
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....venue. The appeal is disposed of accordingly. 27. To obviate any similar situation from arising in future, we are of the opinion that in its adjudication order the adjudicating authority under the Act should explicitly state the options available to the Assessee under Section 11AC of the Act. Once the choices are made known to the Assessee and it still does not take advantage of the first proviso to Section 11AC of the Act, it will be entirely at its own peril. Therefore, it would be beneficial, both from the point of view of the Revenue as well as the Assessee, if the options available to the Assessee are mentioned in the adjudication order itself. 28. A copy of this order be given dasti to learned counsel for the both the parties." ....
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.... "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 persons under this section shall be twenty-five percent. Of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso:" It is seen that these proviso to section 11AC of the Act have been specifically inserted to ensure speedy recoveries of the disputed....