TMI Blog2014 (8) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... pex 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the duty demand of ₹ 5,13,074/- against the respondent alongwith interest and beside this, also imposed penalty of equal amount on them under Section 11AC of the Central Excise Act. On appeal being filed to Commissioner (Appeals) against this order of the Additional Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 04/07/05 upheld the duty demand and reduced the penalty to ₹ 1.25 lakhs from ₹ 5,13,074/-. Against part of the Commissioner (Appeals)'s order reducing the penalty, this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Shri Amresh Jain, the learned DR, assailed the Commissioner (appeals) order reducing the penalty to ₹ 1.25 lakhs from the penalty equal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation period is not applicable, the penalty under Section 11AC equal to the duty demand confirmed would not be imposable and at the most penalty can be imposed only under Rule 25 of the Central Excise Rules, 2002 where the quantum of penalty is discretionary and that in view of this, there is no merit in the Revenue's appeal. 5. We have considered the submissions from both the sides and perused the records. 6. The dispute in this case is regarding excisability of the intermixture of vitamin being prepared by respondent for captive use in the manufacture of instant baby food. This matter had earlier traveled up to Hon'ble Supreme Court and the Apex Court vide judgment reported in 2009 (235) E.L.T. 577 (S.C.) while upholdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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