TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 653
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Sneha Chemicals, owned by his wife, on job work basis. The entire activity was carried out without intimation to the Customs authorities, without de-bonding of capital goods and without obtaining permission of the Development Commissioner to remove the finished goods into DTA. Simultaneous searches were conducted by the departmental officers in the factory, and also the premises of all the connected persons and many incriminating documents along with raw materials / semi-finished goods and capital goods were seized. The appellants admitted the offence and suppression of facts of job work in EOU without prior permission and pre-deposited Rs. 30 lakhs towards government dues in advance and further requested for leniency. The chronology of events which occurred subsequently is as under:- i. A show-cause notice was issued for confiscation of goods, demand of duty on the said goods along with interest and penalty. ii. The adjudicating authority confirmed the demand in show-cause notice along with interest and penalty. iii. Aggrieved by the order, the appellants preferred an appeal before Commissioner(Appeals) who upheld the Order-in-Original but reduced the penalty of Rs. 32,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rther submitted that in the present case, the appellant had predeposited an amount of Rs. 30 lakhs under protest during the time of investigation i.e. on 30/06/2003, itself which included duty, interest component, though the final adjudication process completed by passing the order during February 2016. He further submitted that the entire duty along with interest has been paid much before the issuance of the show-cause notice and therefore in view of the settled law, no penalty can be imposed. He further relied upon various decisions wherein it has been held that if the duty along with interest is paid before the issuance of the show-cause notice, then in those cases, the appellant is not liable to pay penalty under Section 11AC. The decisions are: i. CCE, Bangalore-II Vs. Pushpadeep Enterprises [2012(279) ELT 503 (Kar.)] ii. CCE, Mangalore Vs. Shree Krishna Pipe Industries [2004(165) ELT 508 (Kar.)] iii. Rashtriya Ispat Nigam Ltd. Vs. CCE, Visakhapatnam [2003(161) ELT 285 (Tri. Bang.)] iv. Rayalaseema Cement Products (P) Ltd. Vs. CCE, Guntur [2007(210) ELT 677 (Tri. Bang.)] 4.3. He also submitted that even if there is an allegation of suppression of fact with intent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s observed that the quantum of penalty also needs to be redetermined by the adjudicating authority after requantifying the demand of duty. The Tribunal has also observed in its final order that quantum of penalty to be imposed on the appellant under Section 11AC of the Act should not exceed the amount of penalty determined by the Commissioner(Appeals). further I find that on redetermination of duty, it was found that the appellant is liable to pay the duty amounting to Rs. 18,66,768/- instead of Rs. 32,34,540/- which was originally confirmed by the commissioner(Appeals) vide his order dt. 20/02/2006. Further the original authority in de novo order has imposed a penalty of Rs. 16 lakhs on the basis of the order passed by the Commissioner(Appeals) earlier. Further I find that in the present case, during the course of investigation, appellant deposited Rs. 30 lakhs under protest on 30/06/2003 which takes care of the duty and interest components and the same was paid before the issuance of show-cause notice, though the appellant has prayed that once he has paid the duty and interest prior to the issue of show-cause notice, no penalty is imposable on him and he relied upon the judgments....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10) of section 11A, then, the amount of penalties and interest payable shall stand modified accordingly and after taking into account the amount of duty of excise so modified, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay such amount of penalty or interest so modified. Explanation.-For the removal of doubts, it is hereby declared that in a case where a notice has been served under sub-section (4) of section 11A and subsequent to issue of such notice, the Central Excise Officer is of the opinion that the transactions in respect of which notice was issued have been recorded in specified records and the case falls under subsection (5), penalty equal to fifty per cent of the duty shall be leviable. (2) Where the amount as modified by the appellate authority or tribunal or court 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....