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2015 (9) TMI 825 - RAJASTHAN HIGH COURT

2015 (9) TMI 825 - RAJASTHAN HIGH COURT - 2015 (323) E.L.T. 40 (Raj.) - Mandatory penalty - Whether the Tribunal can override the statutory provisions enshrined in the law in as much as the second proviso to Section 11AC of Central Excise Act, 1944, has been ignored in reducing the penalty wherein specific provisions are enlisted that the benefit of reduced penalty shall be available only when penalty is paid within 30 days of the date of communication of the Order which is not the case in the p .....

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since duty was deposited prior to the show cause notice, penalty could not be levied, is contrary to the principles settled in the central excise laws. - The judgment was rendered on equity, which is not applicable to the laws relating to central excise. The observation that since duty was deposited prior to the show cause notice, penalty could not be levied, is contrary to the principles settled in the central excise laws. - Decided in favour of Revenue. - D.B. Central Excise Appeal No.40/2009, .....

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or short, 'the Act'), filed by the Commissioner of Central Excise, Jaipur, was admitted on the following substantial question of law:- Whether the Tribunal can override the statutory provisions enshrined in the law in as much as the second proviso to Section 11AC of Central Excise Act, 1944, has been ignored in reducing the penalty wherein specific provisions are enlisted that the benefit of reduced penalty shall be available only when penalty is paid within 30 days of the date of commun .....

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of the appellant-Company admitted the shortage. He stated that the said quantity was cleared from their factory. They have also deposited the entire amount of duty on 21.01.2002 and 02.02.2002. On 9/10th July, 2002, the Central Excise Officers intercepted a truck carrying finished goods of the appellant-Company without accompanying any central excise invoice. The appellants deposited the entire amount of duty on the goods cleared of ₹ 19,522/-. A shortage of input credit of ₹ 47,648 .....

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ner of Central Excise, Delhi Vs. Machino Montell(I) Ltd., 2006(202) ELT 398(P&H), and the Delhi High Court in CCE Vs. Malbro Appliances P.Ltd., 2007(208) ELT 503(Del.), and relying upon the first Proviso to Section 11AC of the Act, held that the Act provides for penalty of 25%, if duty demanded, is paid within 30 days of the order, and accordingly reduced the penalty to ₹ 47,643/-, i.e. 25% of the duty amount. 5. Learned counsel appearing for the Central Excise Department, submits that .....

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ere duty is determined under sub-section (2) of Section 11 and interest payable under Section 11AB of the Act, is paid within 30 days from the date of communication of the order of the Central Excise Officer, determining such duty, and not from the date of issuance of the show cause notice. The unamended Section 11AC with its first Proviso, is quoted as below:- (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, ch .....

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hort payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information. Explanation 1.- Nothing contained in this sub-section shall apply in a case where duty was not levied or was not paid or was short-levied or was short paid or was erroneously refu .....

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