TaxTMI 
TaxTMI 
2017 (1) TMI 364
X X X X Extracts X X X X
X X X X Extracts X X X X
....red to pay 5%/6% of the value of exempted goods cleared by them which the appellant paid alongwith interest. Thereafter, a show cause notice was issued to the appellant to imposed the penalty under Section 11AC of the Central Excise Act, 1944. The adjudicating authority imposed the penalty on the respondent but on appeal by the respondent before the Ld. Commissioner (Appeals), the penalty was dropped relying of the decision of the Hon ble High Court of Karnataka in the case of Commr. Of C. Ex., Bangalore-I Vs. Geneva Fine Punjch Enclosures ltd. 2011 (267) E.L.T. 481 (Kar.). 3. Aggrieved from the said order Revenue is before me. 4. The Ld. A.R. submits that the respondent were not paying 5%/6% of the amount of exempted goods in terms o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 11A(C) makes it clear that the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A. 6. Therefore, the determination of liability to pay duty is a condition precedent for imposing penalty. If after demand of duty if the assessee without contesting the claim voluntarily pays the duty and interest payable thereon for the delay in payment of duty on the stipulated day, the question of the officer determining the duty payable would not arise, it is only in cases duty is determined coupled with the fact that the duty is evaded by a reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in certain cases.:- (1) The amount of penalty for non-levy or short-levy or non-payment or short payment or erroneous refund shall be as follows:- (a) Where any duty of excise has not been levied or paid or short-levied or short paid or erroneously refunded, by reason of fraud or collusion or any wilful mis-statement or suppression of facts, 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 (10) of Section 11A shall also be liable to pay a penalty equal to the duty so determined; (b) Where details of any transaction available in the specified records, reveal that any duty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of which notice was issued have been recorded in specified records and the case falls under sub-section (5), penalty equal to fifty per cent of the duty shall be leviable. (2) Where the amount as modified by the appellate authority is more than the amount determined under sub-section (10) of Section 11A by the Central Excise Officer, the time within which the interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority in respect of such increased amount. 6. From the above section, it is clear that in these cases where the duty is determined under section 11A(2), the penalty under section 11AC can be imposed. In the present case there was neither any show cause noti....