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TMI Blog2007 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... ed equal penalty under Section 11AC of the Central Excise Act, 1944 and also charged interest under Section 11AB of the Act, upon the assessee. Penalty of Rs. 25,000/- is also imposed upon Senior Officer (Commercial) of the assessee. The assessee took the matter before the Customs, Excise & Service Tax Appellate Tribunal ("CESTAT" for short). The appeal was partly allowed by the Tribunal, by a brief judgment and we quote the relevant portion verbatim. "The amount of duty has been prior to issue of notice and is not under contest. It is pleaded that, the penalty and interest as ordered cannot be upheld following the decision of the Larger Bench of the Tribunal in the case of CCE v. Machino Montal (India) Limited, 2004 (168) E.L.T. 466 (T-LB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the basis of self ascertainment and without waiting for show cause notice and adjudication as under Sections 11A(1)(2). Therefore, payment of short duty/unpaid before issuance of show cause notice does not exempt an assessee from payment of penalty under Section 11AC. 5. Although Advocate Shri Godsay argued about non-existence of requirement of Section 11AC, such as, fraud, collusion etc. such an averment is not available to the assessee. This is because, the contention of the assessee that this is not a case of suppression was rejected by the Commissioner and this finding is not reversed by the Tribunal and yet, the assessee has not come to this court against the order of the Tribunal of not reversing the finding of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clients have also paid interest and considering that aspect, CESTAT had granted stay to the execution of the order, to the extent, of penalty imposed. 7. While allowing the appeal of the department to the extent that penalty as under Section 11AC will have to be imposed in accordance with the quantum as prescribed by the said Section and penalty cannot be Rs. 1,00,000/-, we clarify that in case, the departmental authorities find that interest under Section 11AB was paid by the assessee within a period of thirty days from the date of order of the Commissioner (28-1-2005), in that case, the assessee shall be entitled to benefit of first proviso to Section 11AC. 8. The appeal of the department is thus allowed in above terms i.e. penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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