2018 (11) TMI 1379

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....isposal. 2. The appellant is engaged in the manufacture of Glass & Glassware classifiable under Chapter 70 of the Central Excise Tariff Act, 1985. During the audit of the records and documents it was observed that the appellant had cleared old and used capital goods from the factory premises without paying Central Excise duty. On being pointed out, the appellant paid the excise duty amounting to Rs. 1,02,678/- by debiting from RG 23A Part II under intimation to the department on 28.04.2015. Show cause notice dated 28.07.2015 was issued to demand and recover an amount of Rs. 1,02,678/- alongwith interest and to impose penalty. The adjudicating authority passed the following order: "Order In view of the findings in foregoing, I hereby pass....

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....before this Tribunal. 3. Ld. CA appearing on behalf of the appellant company submits that cenvat credit was reversed before issuance of the show cause notice and hence there was no occasion for issuance of show cause notice. Ld. CA made the Bench go through the adjudication order where the ld. Adjudicating Authority has observed that the assessee reversed the amount of cenvat credit vide RG 23A Part II Sl.No.416 dated 28.04.2015 i.e. much before the issuance of the show cause notice. Further, he has also observed that as sufficient balance was always lying in their account since the date of credit taken, till the date of reversal of the same, repayment of interest was waived. Ld. CA further argued that they are not disputing the demand as ....

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....of the said sub-section (2B) of Section 11A, where duty has been deposited before issue of show cause notice? 3. It is not disputed that assessee admitted liability of payment of duty and deposited requisite amount on 7-2-2003 while show cause notice was issued on 4-4-2003 proposing to impose penalty under Section 11AC and under Section 11AB of Central Excise Act but this has been set aside by Customs, Excise and Service Tax Appellate Tribunal holding that the petitioner did not intend to defy duty demanded by Tribunal hence penalty is not justified. 4. We find that there is a consensus in various High Courts as also various Benches of High Courts that if disputed duty is paid by an assessee before a show cause notice proposing penalty ....