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2014 (8) TMI 368 - AT - Central ExciseLevy of penalty - mandatory penalty u/s 11AC - Commissioner (appeals) while confirming the duty reduced the penalty - Excisability - Marketability - Intermediate product - manufacturing of intermixture of vitamin - captive use in the manufacture of instant baby food - Exemption Notification No. 67/1995-CE - Held that:- in the denovo decision of the Tribunal in NESTLE INDIA LTD. [2011 (4) TMI 675 - CESTAT, NEW DELHI], while the Tribunal held that the intermixture of vitamin is marketable and, hence, excisable, in para 95 of the judgment, the Tribunal held that the demand would be limited only to normal limitation period in view of the Apex Court's judgment, wherein the Apex Court held that the view taken by the Tribunal in the earlier order that extended period of limitation was not applicable, was justified. Since, the language of proviso to Section 11A (1) of Central Excise Act, 1944 which provides for the extended limitation period of 5 years for recovery of short paid, non-paid or erroneously refunded duty and the language of Section 11AC of Central Excise Act, 1944 which provides for imposition of penalty equal to the duty demand confirmed in certain situations, is identical and the situations and circumstances in which the extended period can be invoked under proviso to Section 11A (1) and the situations and circumstances in which the penalty under Section 11AC can be imposed are identical, when a finding has been given by the Apex Court that extended limitation period is not invokable, the penalty under Section 11AC also would not be attracted. Penalty could be imposed only under Rule 25 (1) of the Central Excise Rules, where it is discretionary and it need not be equal to the quantum of duty demand - Decided against Revenue.
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