Final Order No. A/1326/2012-EX(BR)(PB) arising from in Appeal No. E/2403/2005. Case: Commissioner of C. Ex., Allahabad Vs Alaknanda Cement (P) Ltd.. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Case NumberFinal Order No. A/1326/2012-EX(BR)(PB) arising from in Appeal No. E/2403/2005
CounselFor Appellant: Shri R.K. Verma, DR and For Respondents: Shri Bipin Garg, Advocate.
JudgesAjit Bharihoke, President and Shri Rakesh Kumar, Member (T)
IssueCentral Excise Act, 1944 - Section 11AC
Citation2013 (288) ELT 94 (Tri. - Del.)
Judgement DateNovember 06, 2012
CourtCEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Order:

Rakesh Kumar, Member (T), (Principal Bench At New Delhi)

  1. The respondents are manufacturer of cement. A case of clandestine removal of cement involving duty of Rs. 3,17,089/- was booked against them by jurisdictional central excise officers. After issue of show cause notice to them, the jurisdictional Asstt. Commissioner vide order-in-original dated 31-8-2004 confirmed the duty demand of Rs. 3,17,089/- against the respondent along with interest and besides this also, imposed penalty of equal amount on them. On appeal being filed by the respondent company before the Commissioner (Appeals), the Commissioner (Appeals) confirmed the duty demand. He, however, reduced the penalty amount by Rs. 51,817/- taking note of the fact that this amount of excise duty had been deposited by the appellant even before the issue of show cause notice. Against this order of the Commissioner (Appeals), this appeal is filed by the Revenue.

  2. Heard both the sides.

  3. Shri R.K. Verma, DR assailed the impugned order pleading that just because of a part of the duty has been deposited before the issue of show cause notice, this would not be ground for reduction of penalty imposable under Section 11AC to that extent and that in this regard, he relies upon the Apex Court''s jud ment in the case of Dharamendra Textile Processors reported in 2008 (231) ELT 3 (SC) and also in the case of Rajasthan Spinning & Weaving Mills reported in 2009 (238) ELT 3 (SC). He, therefore, pleaded that the impugned order of the Commissioner (Appeals) reducing the penalty to Rs. 2,66,272/- is not correct.

  4.  Ld. Shri Bipin Garg, Advocate, has argued in support of the impugned order. He has referred to 1st and 2nd proviso to Section 11AC of the Central Excise Act, 1944 and submitted that the benefit of reduction of penalty to 25% is available to the respondent even if he deposits the entire excise duty with interest pursuant to the order of the Tribunal, because no option was given by the original adjudicating authority in this regard. In support of his contention, he has relied upon the judgment of the Hon''ble Delhi High Court in the case of K.P. Pouches (P) Ltd. v. Union of India reported in 2008 (228) ELT 31 (Del.) as also the judgment of Gujarat High Court in the matter of Commissioner of Central Excise v. Harish Silk Mills reported in 2010 (255) ELT 393 (Guj.).

  5. We have considered the rival contentions and perused the records. It is admitted case of the parties that the...

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