TMI Blog2011 (1) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee - 99 of 2010 - - - Dated:- 27-1-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri Y. Hari Prasad, Advocate, for the Appellant. [Judgment per : N. Kumar, J.]. Sri Harish, the learned Counsel is permitted to file power for the respondent. 2. This is an appeal by the revenue challenging the order passed by the tribunal, who in turn set aside the order passed by the Revisional Authority, which had imposed the penalty after setting aside the order of the Original Authority. 3. The assessee is a manufacturer of sheet metal components, parts of medical equipment and fitness equipment falling under CSH 8537.00, 9033.00 and 9506.22 respectively of the First Schedule to the Central Excise Tariff Act, 1985. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the assessee on 10-3-2005. The assessee sent a reply contending that they have already paid the duty and penalty and therefore, they are not liable to pay the same. However, the Assessing Authority i.e., Assistant Commissioner, relying on the judgment of the tribunal set out in the order, accepted the case of the assessee and took note of the fact that even before the issue of show cause notice demanding penalty, they had voluntarily paid the duty and interest and therefore, he did not propose to impose any penalty. Aggrieved by the same the revenue preferred an appeal before the Commissioner of Central Excise (Appeals-I) who interfered with the order passed by the Original Authority and held as these irregularities were noticed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty, which order has been set aside by the tribunal. 5. As it is clear from Section 11-A after a notice is issued under Section 11(A)(C), the assessee has a right to make a representation contesting the claim. It is, thereafter, under Section 11(A)(2) the Central Excise Officer after considering the representation, if any, made by the person on whom notice is served, determining the amount of duty of excise due from such person and thereupon such person shall pay the amount so determined. Section 11A(C) makes it clear that the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A. 6. Therefore, the determination of liability to pay duty is a condition precedent for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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