TaxTMI 
TaxTMI 
2015 (11) TMI 211
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....it of the appellant's factory some discrepancies in availment of Cenvat Credit was pointed out. The appellant admittedly paid entire amount of Cenvat Credit suo-moto before the issuance of show cause notice. On payment of such duty, the issued as regard the payment of duty attained finality and no show cause notice was issued with regard to short payment of duty. However, show cause notice dated 13/5/2005 was issued proposing only demand and interest on the duty so paid under Section 11AB, penalty under Rule 173Q of Central Excise Act, 1944, read with Rule 25 and under Rule 13 of Cenvat Credit Rules, 2002. Penalty equivalent to amount of duty under Section 11AC. Show cause notice was adjudicated by Order-in-Original dated 30/10/2005 wherein....
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.....R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have carefully considered the submissions made by both sides and perused the record. 6. It come to the notice regarding the short payment, non payment of duty during the audit of the appellants record as a result appellant suo moto paid the entire duty and not contesting the same. The Revenue has not issued any show cause notice for demand of duty and appropriation of the amount already paid by the appellant. Provision of penalty imposed under Section 11AC which is reproduced below: Section 11AC in the Central Excise Act, 1944 1[11AC. Penalty for short-levy or non-levy of duty in certain cases.Where any duty of excise has not been levied or p....
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....t, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation.For the removal of doubts, it is hereby declared that (1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (2) any amount paid to the credit of the Central Government prior to the date of communicat....
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.... under section 11AA. (2) The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. From the above Section 11A(2), it is seen that under this section duty is determined by the Central Excise Officers after considering representation made by the person on whom notice is served under subsection(1). In the present case neither any notice was issued under Section 11A(1) nor Central Excise Officers has determined the duty short paid / not paid ....