2018 (12) TMI 775

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....Act, 1985. Show Cause Notice dated 16.11.2016 was issued alleging removal of finished products from the factory without payment of central excise duty. The Adjudicating Authority confirmed the demand of Rs. 16,59,067/- alongwith interest and also imposed equal penalty. On appeal, the first appellate authority upheld the adjudication order. However, he set aside the penalty imposed. Being aggrieved, the Revenue is in appeal before the Tribunal. Respondent assessee has filed cross objection. 2. Ld. DR reiterates the grounds of appeal and submits that the Commissioner (Appeals) cannot set aside the penalty imposed under Section 11AC of the Central Excise Act, 1944. 3. Ld. Advocate appearing on behalf of the respondent assessee submits th....

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.... that it does not attract the provisions of sub-section (3) of Section 11A supra. 16. I find that the appellant had duly paid the Central Excise duty totaling to Rs. 19,86,082/- [Rs.19,28,235/- (Cenvat) + Rs. 38,564/- (Ed.Cess) + Rs. 19,283/- (S & H Ed. Cess) ] pertaining to price escalation for F.Y. 2010-11 in the month of May, 2011 vide issuance of Invoice Nos. 64-66 all dated 07.05.2011 and 128-132 all dated 31.05.2011 in addition to Rs. 39,74,470/- [Rs.38,58,709/- (Cenvat) + Rs. 77,174/- (Ed.Cess) + Rs. 38,587/- (S & H Ed. Cess)] pertaining to price escalation for F.Y. 2011-2012 in the months of June, 2012 and July, 2012 vide issuance of Invoice Nos. 122 dated 30.06.2012, 162 and 163 dated 25.07.2012 and 164 & 165 dated 26.07.2012, b....

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....ions of sub-section (3) of Section 11A of the said Act are not attracted in the instant case. 18. As such, I am of the considered opinion that the appellant is eligible for being extended the benefit of sub-section (2) of Section 11A ibid which categorically provides that the impugned Show Cause Notice should not have been issued to the appellant in the instant case and also that no penalty is required to be imposed on them. 19. Regarding imposition of penalty on the appellant in terms of Section 11AC of the Central Excise Act, 1944, I find that the statute explicitly bars the imposition of penalty in cases where the assessee concerned is eligible for availment of benefit of sub-section (2) of Section 11A of the said Act. Accordingly,....