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2013 (10) TMI 352 - CESTAT AHMEDABADReduced Penalty u/s 11AC of the CE Act - Whether the benefit of payment of 25% penalty u/s 11AC of the Central Excise Act was not admissible to the Respondent as it was not paid by the Respondent within 30 days of the order but was paid earlier and that can only be considered as a deposit made – Held that:- It has to be seen as to what could be the motive of the Respondent for denying the receipt of OIO on 06.4.2006 - The entire duty amount was paid by the Respondent on 06.8.2003 and a further amount was paid on 21.08.2003 and 29.08.2003, which represented 25% of the amount of duty involved – Relying upon Commissioner of Central Excise & Cus., Surat vs. Suncity Synthetics [2010 (2) TMI 829 - GUJARAT HIGH COURT] - All these payments were made much before the show cause notice was issued on 30.09.2004 - As the amounts involved in the proceedings were already paid by the Respondent then it was not to gain in any way by posing if it has not to have received OIO in time – the view taken by Commissioner (Appeals) is correct and upheld. It will be a very narrow view to hold that payment of 25% reduced penalty, if made within 30 days of the communication of OIO, will only be proper but if the same payment is made before the issue of show cause notice or Order in Original the same will not be proper and that in the latter situation, Respondent will be required to pay 100% of the penalty imposed under Section 11AC of the Central Excise Act, 1944 - penalty in excess of 25% of the penalty, already paid by the Respondent before the issue of show cause notice, is not payable under Section 11AC of the Central Excise Act, 1944 - Decided against Revenue.
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