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2019 (2) TMI 1020 - AT - Central ExciseShort payment of duty - confirmation of the demand of duty short paid by invoking proviso to Section 11A(1) of the Central Excise Act, 1944 - demand of interest and penalty as well - intent to evade present or not - revenue neutrality - extended period of limitation - collecting the duty from their customers but not depositing the same with the revenue by the due date. Held that:- There appears to be no dispute that Appellants have not paid the duty demanded at the relevant time and hence short paid the duty to that extent. In case of non/ short payment of duty, Section 11A of the Central Excise Act, 1944 automatically comes into picture and demand is made in terms of that section, to recover the duty so short paid. In case the duty is paid after the relevant date the same gets adjusted by application of the section. In the present case the period of demand is from April 2003 to November 2005 (Unit-1) and April 2003 to March 2006 (Unit-2). The argument about system glitch in SAP-ERP system of the Appellants for such a long period do not appear to be justified. The appellants were issuing the invoices and collecting the duty from their customers but not depositing the same with the revenue by the due date. This itself shows the malafide intention of the appellants. Benefit of reduced penalty - Held that:- Since in the present case the order is dated 18.08. 2010 and has been received by the Appellants on 27.08.2010 and appellants have deposited the 25% of penalty before filing of the appeal on 18.08.2010. Adjudicating authority should have extended the benefit of payment of penalty of 25% of duty demanded in his order as per the first proviso to section 11AC. Since the appellant has made payments as per the proviso to the section 11AC the benefit of proviso should have been allowed to them. Appeal allowed in part.
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