TMI Blog2008 (1) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... ocates, for the Appellant. Shri Mukesh Anand with Ms. Zeba Tarannum, Advocates, for the Respondent . [Order per : Madan B. Lokur, J. (Oral)]. - The Assessee is aggrieved by an order dated 15th February, 2007 read with an order dated 27th July, 2007 [2007 (220) E.L.T. 960 (Tri.-Del.) passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) in Excise Appeal No. 2134/2005-NB(SM) and Excise Miscellaneous Application No. 447/2005 SM(BR) respectively. 2. After hearing learned counsel for the parties, we admit this appeal and frame the following substantial question of law for consideration: - "Whether the Customs, Excise and Service Tax Appellate Tribunal was correct in law in upholding the imposition of 100% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gust, 2004 wherein he found that the Assessee had violated the provisions of the Central Excise Act, 1944 (for short the Act), and ordered confiscation of the goods and also appropriation of the duty amount of Rs. 2,73,488/-. The Assistant Commissioner also imposed a penalty on the Assessee of 100% of the duty under the provisions of Section 11AC of the Act. 10 . According to the Assessee, in view of the first proviso to Section 11AC of the Act, penalty in excess of 25% could not have been' levied since the entire duty was paid by the Assessee on the date of the search and seizure, which was of course well before the date of the show cause notice. 11. Feeling aggrieved by the imposition of 100% penalty, the Assessee preferred an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as deter mined under sub-section (2) of section 11 A, shall also be liable to pay a penalty equal to the duty so determined : Provided that where such duty as determined under Sub-section (2) section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty-five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AC of the Act. 20 . Since the Assistant Commissioner had wrongly demanded 100% of the duty by way of penalty and the Assessee was under no obligation to pay it, the Assessee preferred an appeal before the Commissioner (Appeals) as well as before the Tribunal. Neither of these authorities paid heed to the terms of the first proviso to Section 11AC of the Act. 21. As far as we are concerned, no one can say that if the Assistant Commissioner had in fact imposed only 25% of the duty amount by way of penalty (as he should have), the Assessee would not have paid the penalty amount within 30 days of the adjudication order. However, the benefit of doubt in this regard must go to the Assessee considering its bona fides, which are obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Assessee has brought to our notice that an amount of Rs 50,000/- was deposited before the Tribunal at the time when its application for waiver of pre-deposit was heard. This amount is a little short of 25% of the duty amount. Learned counsel for the Assessee says that he will make the balance payment within ten days of the receipt of the order passed by us to day. In the event, the Assessee fails to make the payment within that time, the Respondents will be entitled to recover the entire penalty amount as adjudicated by the Tribunal. 26. The question of law is, therefore, answered in the negative, in favour of the Assessee and against the Revenue. The appeal is disposed of accordingly. 27. To obviate any similar situation fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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