ORDER
S.S. Kang, Member (J)
1. The appellants had already paid the duty, therefore, the application is for waiver of pre-deposit of penalty only. With the consent of both the parties, the appeal is being taken up for disposal without asking for any pre-deposit.
2. The appellants are only contesting the imposition of penalty under Section 11AC of Central Excise Act, 1944.
3. The contention of the appellant is that it is a settled law that under Section 11AC, the authority had discretion to impose lesser penalty. Their contention is that the duty was paid even prior to issuance of show cause notice and there was some accounting mistake due to which shortage and excess were found. The appellants are relied upon the decision of CCE, Madurai v. Jkon Engg. (P) Ltd., reported in 2003 (151) ELT 453 (Tri.-Chennai) and in the case of GEA Energy System (India) Ltd. v. CCE, Chennai, reported in 2003 (55) RLT 330 (CEGAT-Chennai), to say that where the duty has been paid voluntarily prior to the issuance of show cause notice, the penalty cannot be imposed.In the present case, there are certain shortages and excess in the goods were found during verification and only after verification appellant paid duty and even after the issuance of show cause notice, the appellant contested the demand hence in the present case it cannot be said that the appellant paid duty voluntarily. In view of these facts the ratio of decisions relied upon by the appellant are not applicable on the facts of the present case.
4. I find that Tribunal in the case of Escort JBC v. CCE, reported in 2000 (118) ELT 650 held that the authority has discretion to impose lesser amount of penalty under Section 11AC.
5. Keeping in view the facts and circumstances of the case, penalty is reduced to Rs. 20,000/-, otherwise the impugned order is upheld.
