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TMI Blog2012 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... hat such a contention if made was dealt with. Learned counsel for the appellant makes a statement at the Bar that the issue was specifically raised. If that is so, it would be appropriate for the Tribunal to deal with the same in the first instance. In these circumstances, we permit the appellant to move an application under the appropriate provisions of law seeking review of the order on the aforesaid term. While granting the aforesaid liberty, this appeal is dismissed." 2. Learned counsel for the appellant has drawn our attention to the order in original dated 5th March, 2004, the operative portion of which reads as under:- " In view of the above discussion and findings, I proceed to pass the following order:- (i) I confirm duty of Rs.17,88,262/- involved on the goods cleared without payment of duty during the period 1999-2000 and 2000-01 under proviso to Section 11A(1) of the Central Excise Act, 1944. (ii) I appropriate an amount of Rs.2,50,000/- voluntarily paid by the party as duty which may be adjusted against the above confirmed demand. (iii) I impose penalty of Rs.17,88,262/- upon the party under Rule 173Q of Central Excise Rules, 1944 and Section 11 AC read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation.-For the removal of doubts, it is hereby declared that- (1) the provisions of this section shall also apply to cases in which the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had paid Rs.2.5 lacs during investigation. The tribunal asked the appellant to make pre-deposit of Rs.4 lacs. At the first appellate stage, the appellant had made payment of Rs.1.5 lacs. Thus, in all the appellant had deposited Rs.8 lacs, out of the total duty demand of Rs.17,88,262/-. As noticed above, the appeal of the appellant was dismissed on merits vide order dated 1st July, 2010. 7. We have noted the aforesaid facts in view of the legal contention raised by the appellant that benefit of Section 11AC of the Act has been denied to him, because of the fault of the respondent and he being compelled to pay 100% penalty equal to Rs.17,88,262/-, whereas in case benefit of the first proviso is given, the appellant would be liable to pay Rs.4.47 lacs, in addition to duty demand of Rs.17,88,262/- plus interest. 8. We may have issued notice on the present appeal and examined the said contention, but in view of the facts stated above, we are of the opinion that the conduct of the assessee shows that he was not interested and did not want to take advantage or benefit of the first proviso to Section 11AC. He never intended and wanted to make payment of the duty amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issued circular No. 898/18/09-CX dated 15th September, 2009. For the sake of convenience, paragraphs 2 and 3 of the said circular are reproduced:- "2. The matter has been examined. The provisions relating to reduction of penalty to 25% are contained in proviso (1) to (4) of Section 11AC. In terms of proviso (1) and (2), a penalty imposed under Section 11AC can be reduced to 25% on fulfillment of following conditions. i. Duty determined under Section 11A(2) and interest payable thereon has been paid within 30 days. ii. The said period of 30 days is calculated from the date of communication of the order passed by a Central Excise Officer determining the duty. iii. The reduced 25% penalty is also paid within 30 days of the date of communication of the order passed by the Central Excise Officer. 3. From the above it is clear that in order to avail the benefit of 25% penalty, the duty, interest and penalty are required to be paid within 30 days of communication of the order passed by the adjudicating authority. Further, the reading of proviso (4)would also support this interpretation because the said proviso stipulate that wherever duty amount is increased at any appellate stage, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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