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2014 (12) TMI 1124 - CESTAT MUMBAIWaiver of pre deposit - Penalty u/s 11AC - Whether the penalty is imposable on the appellant for the delay in payment of duty - Held that:- Appellant did not discharge duty liability for the months of June, 2010 and October, 2010 to April, 2011. However, in the monthly ER-1 Returns, they misdeclared that they had discharged the duty liability. However, the factual position was otherwise. The cheques, which the appellant had deposited towards payment of duty, were dishonoured by the Bank for want of funds in the account and these cheques were also returned to the appellant. The appellant were fully aware about non-payment of the duty. In spite of this knowledge, they did not inform this fact to the department. Further, in the monthly ER-1 Returns, they misdeclared that they had actually discharged the duty liability. This conduct on the part of the appellant is a wilful misstatement of facts with an intent to evade payment of duty. Therefore, the provisions of Section 11AC are clearly attracted. Merely because the appellant discharged the duty liability along with interest prior to the issue of notice, the misconduct on the part of the appellant cannot be obliterated. As per the provisions of Section 11A(6), only on payment of duty, interest and penalty equal to 10% of such duty per month for which the default continued not exceeding 25% of the duty, the balance amount of penalty can be waived. In the present case, even though the appellant had discharged the duty and interest levied, they have not paid any penalty as stipulated in law. Therefore, the question of waiving of penalty would not arise at all. appellant had not made out a case for complete waiver of penalty adjudged against the appellant - Partial stay granted.
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