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2012 (11) TMI 1005 - AT - Central ExciseClandestine removal of cement - Duty demand - Equivalent penalty - Commissioner reduced the penalty amount by taking note of the fact that this amount of excise duty had been deposited by the appellant even before the issue of show cause notice - Held that:- Bare reading of the Section 11AC indicate that in the cases in which the excise duty has been paid or short paid by reason of fraud, collusion or any wilful 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 determined under sub-section (2) of Section 11A, shall also be liable to pay a penalty equal to the duty so determined. Admittedly, the duty demand on the ground of clandestine removal has been confirmed against the respondent and the appeal against aforesaid confirmation has been dismissed by CESTAT. Therefore, in view of the above provisions, the respondent is liable to pay the penalty equal to the amount of duty confirmed against them. Coming to the proviso 1st & 2nd, on reading of the aforesaid provisos, it is apparent that benefit of reduction of penalty to 25% can be availed by the assessee provided he deposits the duty demand confirmed against him along with interest and 25% of the duty as penalty within 30 days of communication of the order confirming the demand. In the instant case, the respondent himself admits that the duty demand has been confirmed against them and he has not pleaded deposit of the duty within 30 days of the order of the confirmation of duty demand either by the adjudicating authority or by the Commissioner (Appeals) or by CESTAT - Commissioner (Appeals) committed a grave error in reducing the penalty ignoring the provisions of Section 11AC of the Central Excise Act, 1944 - Decided in favour of Revenue.
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