2017 (11) TMI 271

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.... 186.860 MTs of MS Bars during the period 03/02/2010 to 10/12/2010 without accounting for in their books and without payment of Central Excise duty. A show-cause notice was issued to the appellants and the demand was confirmed and equivalent penalty was also imposed. Apart from the above, redemption fine was also imposed, however the same was set aside by the Commissioner (Appeals). Aggrieved by the confirmation of duty and imposition of penalty, the appellants are before the Tribunal. 2. Ld. Counsel argued that they had paid duty on 02/02/2011 and on 17/02/2011 along with interest and penalty of Rs. 1,21,376/- (25% of the duty amount). The appellant claimed the benefit of proviso to Section 11A (2) of the Central Excise Act. Ld. Counsel....

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.... under clause (a), pay on the basis of (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon 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. However, it appears that appellant, in appeal, is relying upon the same provisions as existed on the date of offence instead and seeks relie....

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.... the condition precedent for that procedure to apply was met. In the normal course, when the quantum of substantive penalties is to be decided, the date of offence is the relevant date. However, in the instant appeal, the quantum of substantive penalty is not in issue and hence the date of offence will not be the relevant date. The relief claimed by the appellant is by way of relying on certain procedures but the application of such procedures depends directly upon the date of issue of show-cause notice. Hence, the relevant date for the application of provisions of Section 11A(1A) and proviso to Section 11 (2)/Section 11A (1) (b) of Central Excise Act, 1944 as existing on 10/10/2012, and not Section 11A(1A) and proviso to Section 11 (2) as ....