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2017 (5) TMI 602 - AT - Central ExcisePenalty u/s 11AC - wrongful availment of CENVAT credit - appellant have paid entire duty along with interest before issuance of SCN - Held that: - there is no dispute that duty alongwith interest was paid prior to issue of SCN. But non-payment of duty due to suppression of fact on the part of the appellant as the fact related to non-payment of duty was no disclosed to the department. Accordingly there is suppression of facts - In case of suppression of facts Section 11A(2B) is not applicable therefore penalty was correctly imposable u/s 11AC. As per the Board Circular dated 22-5-2008, the adjudicating authority must give the option contained in first and second proviso to Section 11AC in order-in-original - appellant should be given one opportunity for exercising option of 25% penalty. Matter remanded to the adjudicating authority - appeal allowed by way of remand.
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