2004 (1) TMI 408

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..... ondent. [Order]. This appeal has been filed by the Revenue against the impugned order vide which the Commissioner (Appeals) has set aside the penalty on the respondents under Rule 26 read with Section 11AC of the Central Excise Act. 2. The controversy involved is as to whether the penalty could be set aside on the simple ground that the respondents deposited the duty before the issuanc .....

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..... d., 2003 (151) E.L.T. 453 wherein it has been observed that no penalty is leviable where the assessee had deposited the duty before the issuance of the show cause notice. On the other hand, the learned Counsel has reiterated the correctness of the impugned order and contended that the penalty on the Director had already been imposed and as such, no penalty on the respondent company could be impose .....

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..... l duty on the goods. True that the respondents contested that show cause notice. The adjudicating authority when confirmed the duty demand against them on that show cause notice, the Commissioner (Appeals) however set aside the same by holding that the extended period was not invocable. But the fact remains that the respondents even at that time did not realise to pay the additional duty voluntari .....

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..... ded against by the Department. Therefore, the ratio of law laid down in the above referred cases relied upon by the learned Commissioner (Appeals) could not be prima facie made applicable to the case of the respondents. Moreover, the Commissioner (Appeals) has himself upheld the confiscation of the goods as ordered by the adjudicating authority. He has even upheld the penalty on the Director of th .....

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..... weight. Therefore, keeping in view the facts and circumstances detailed above and the fact that the duty had already been deposited by the respondents-company, besides penalty on their Director, the penalty under Rule 26 is reduced from Rs. 50,000/- as confirmed by the adjudicating authority to Rs. 10,000/-. 5. In the light of the discussion made above, the impugned order of the Commissioner (Ap .....

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