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2021 (12) TMI 954 - AT - Central ExciseEntitlement to reduced penalty - total amount deposited at the time of investigation is much more than the confirmed duty demand, interest thereon and 25% penalty - Department's contention is that since the appellant have not opted for reduced penalty in writing therefore, 100% penalty will remain payable and accordingly the refund was supposed to be reduced by the amount of 100% penalty instead of 25% penalty - HELD THAT:- The Adjudicating authority while sanctioning the refund even though the appellant informed not to deduct the penalty as they are contesting the matter before the appellate authority, sanction the refund from the amount after deducting the confirmed duty, interest and 25% penalty. The amount deducted by the Assistant Commissioner was deposited and retained by the department right from the day it was deposited till the refund was sanctioned. Therefore, at the time of passing the adjudication order on demand case and even up to the 30 days from the date of such order the amount of confirmed duty, interest thereon and 25% penalty stands deposited with the department. Therefore, there is no reason to deny the benefit of a reduced penalty of 25% to the appellant even though the appellant had not opted but the fact remains that the amount remains very much with the department and the appellant’s request of deducting 100% penalty was not exceeded by the department that itself shows that the department has retained the amount of confirmed duty, interest thereon and 25% penalty not only within a period of 30 days from the date of the said order but much before than therefore, the compliance of the Section 11AC(1) (e) stands complied with . Therefore, the appellant was entitled for a 25% reduced penalty. The Adjudicating authority’s order granting refund after reducing the confirmed demand, interest thereon and 25% penalty out of total deposit of ₹ 2.35 Crores is absolutely correct and legal - appeal allowed - decided in favor of appellant.
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