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2014 (5) TMI 250 - HC - Central ExcisePenalty u/s 11AC - benefit of reduced penalty, if the payment of penalty as determined is paid within the time stipulated therein - adjustment of excess tax paid towards liability of reduced penalty - Held that:- it is clear that non-payment of duty attracts interest and equal amount of penalty. But if there is prompt payment of duty and interest, within the time prescribed under the proviso to Section 11AC of the Act, the assessee has the benefit of reduced payment of penalty as stipulated therein. Whether assessee is entitled to the said benefit is a question of fact which has to be gone into on the basis of the materials placed by the assessee before the authorities. Here the Tribunal was in error in refusing to look into the said material on the ground that the High Court has issued a direction to consider the case keeping in mind the judgment of the Apex Court in the Dharamendra's Textiles Processors (2007 (7) TMI 307 - SUPREME COURT OF INDIA) case, as extracted above. If the assessee has paid excess payment, the excess payment should be adjusted towards the amount due and after deduction, no duty is payable or no interest is payable, the question of imposing penalty would not arise at all. Penalty is leviable only for non payment of duty and interest and in terms of the orders of assessment. If the excess paid amount is taken into account, adjusted towards the duty, the question of imposing penalty would also not arise. - matter remanded to the Tribunal for fresh consideration - Decided in favor of assessee.
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