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TMI Blog2014 (5) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... G of the Central Excise Act, 1944 (for short "the Act"). The appellant's firm has claimed that the following question of law would emerge from the impugned order :- "whether imposition of 100% penalty is justifiable when the duty as well as interest along with 25% of the duty has been deposited prior to the passing of the Order-in-Original dated July 20, 2009 by the adjudicating authority and/or denial of benefit provided under Section 11AC of the Act is wrong and contrary to law." 2. Briefly stated the facts, which led to the controversy and necessary for its disposal are that appellant's firm is engaged in the trading of iron and steel products falling under Chapter 72 of the First Schedule of the Central Excise Tariff Act, 1985 (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Thereafter, the appellant's firm preferred an appeal before the Tribunal, which also met the same fate. Dissatisfied with the above referred orders, instant appeal has been filed. 4. While assailing the impugned order dated May 29, 2013 passed by the Tribunal, Mr. Ishpuneet Singh, learned Counsel for the appellant's firm has ebulliently argued while referring to provisos to sub-section 2 of Section 11AC of the Act that where the duty is determined and interest payable thereon under Section 11AB of the Act is paid within 30 days from the date of communication of the order of the adjudicating officer or any other officer empowered in this behalf to determine such duty, the amount of penalty must be to the extent of 25% of the duty so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as factually justified. 7. We have given our anxious thought to the rival submissions made by the learned Counsel for the parties and have perused the record with their able assistance and find legal force in the submissions made by learned Counsel for the appellant. 8. Before proceeding further to decide the question raised by the appellant, it would be appropriate to refer Section 11AC of the Act, which reads as under :- "Penalty for short-levy or non-levy etc., in certain cases. - Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person." 9. A glance at the aforesaid provision clearly depicts that an amount equal to the amount of duty as determined by the Central Excise Officer under Section 11A(2) of the Act is required to be paid by the assessee where any duty of excise has not been levied or paid; or has been short paid or erroneously refunded by the reason of fraud collusion or any wilful misstatement or suppression of facts or contravention of any of the proviso of the Act or the Rules made with an intention to evade payment of duty. The first and second provisos are relevant to be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order dated July 20, 2009 imposing penalty, of Rs. 2,14,483/- which is equal to the amount of duty of excise determined by the adjudicating authority. Moreover, substantial question of law proposed/posed in this case stand already determined by the Division Bench of this Court in J.R. Fabrics (P) Ltd.'s case (supra) and Shipley Hosiery Industres's case (supra), wherein it was concluded that according to proviso of Section 11AC of the Act only 25% of duty of excise was payable. The facts of the instant case are absolutely similar and identical to the facts of the cases referred to above and present case is covered, whereas authority relied upon by learned Counsel for respondent-Revenue captioned as Dharamendra Textile Processor's case (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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