JUDGMENT T.S. Sivagnanam, J. 1. This appeal by the assessee is directed against the final order passed by the Customs Excise and Service Tax Appellate Tribunal, in order No.1231/07 dated 05.10.2007. 2. The appellant is engaged in the manufacturing of iron and steel re-rolling products. On 26.12.2003, the Intelligence Wing of the second respondent Department visited the appellant's factory and verified the stocks and accounts. Pursuant to such inspection, a show cause notice was issued to the appellant stating that they had adopted lower assessable value at the time of clearing goods to the consignment agents and had realised excess amounts over and above the invoice value adopted at the factory gate. It was further stated in the show cause notice that despite having received sale patties showing proof of such excess collections, they failed to discharge the differential duty liability immediately with interest and they had calculated the differential duty payable for the year 2001-02 by wrongly claiming abatement of freight charges incurred for sending goods from the factory to the place of consignment agents. Therefore, in the show cause notice, it was stated that the appellant had failed to discharge excise duties to the tune of Rs.3,80,560/-. Further, it was stated that though the appellant was making payment of such differential duty based on sale patties received from consignment agents, they had deliberately withheld payment for the subsequent period which clearly shows its willful intention to evade payment of duty. The appellant submitted its reply dated 14.12.2005, stating that show cause notice is barred by limitation and extended period cannot be invoked. Further, it was stated that non-declaration is not sufficient to invoke larger period but a positive misdeclaration is necessary. Further, it is stated that no penalty can be imposed when the duty has been paid prior to the show cause notice. The Original Authority considered the explanation offered by the appellant and after providing an opportunity of personal hearing to the authorised representative held that the demand on duty was fully justified. In this appeal, there is no challenge to demand on duty but the appeal is confined only to the penalty imposed. The Original Authority considered the explanation offered by the appellant and after providing an opportunity of personal hearing to the authorised representative held that the demand on duty was fully justified. In this appeal, there is no challenge to demand on duty but the appeal is confined only to the penalty imposed. The Original Authority by order dated 30.01.2006 while confirming the duty demand, imposed penalty of Rs.3,80,560/- on the appellant under Section 11A(C) of the Central Excise Act, 1944 and Rs.10,000/- penalty under Rule 25 of the Central Excise Rules, 2002, r/w Section 38-A of the Central Excise Act, 1944. Aggrieved by the said order, the appellant preferred an appeal before the Commissioner of Central Excise (Appeals). The Appellate Authority, by order dated 27.03.2007, disposed of the appeal by reducing the penalty to 25% of the amount so determined and imposed Rs.90,000/- as penalty and the penalty imposed under Rule 25 of Central Excise Rules was set aside. Aggrieved by the same, the appellant preferred an appeal before the Customs Excise and Service Tax Appellate Tribunal. Before the Customs Excise and Service Tax Appellate Tribunal the only point canvassed was that the appellant has paid the duty before issuance of show cause notice and therefore, no penalty is leviable. The Customs Excise and Service Tax Appellate Tribunal rejected the contention raised by the appellant by placing reliance on certain earlier decisions of the Tribunal and dismissed the appeal by order dated 05.10.2007. Aggrieved by the same, the appellant has preferred the present appeal and the appeal has been admitted on the following questions of law: "1. Whether on the facts and circumstances of the cases, the Tribunal is right in holding that larger period of limitation is applicable? 2. Whether larger period of limitation is invokable, in the absence of fraud, suppression of facts or mis-representation? 3. Whether penalty and interest are leviable when the duty has been paid before issue of show cause notice? 4. Whether the single member of the Tribunal can take a different view without following the Bench decisions of the Tribunals and the other decisions of the High Courts and also of Supreme Court?" 3. Mr. 3. Whether penalty and interest are leviable when the duty has been paid before issue of show cause notice? 4. Whether the single member of the Tribunal can take a different view without following the Bench decisions of the Tribunals and the other decisions of the High Courts and also of Supreme Court?" 3. Mr. K. Jayachandran, the learned counsel appearing for the appellant while reiterating the contention raised before the Original Authority, Appellate Authority and the Customs Excise and Service Tax Appellate Tribunal, submitted that duty was paid by the appellant prior to the issuance of show cause notice and the explanation offered by the appellant was that they had adopted a notional price in respect of consignment sales and there was a delay in receipt of sale patties. Therefore, it is contented that there is no willful intention to evade payment of duty and penalty of 25% imposed by the First Appellate Authority should be set aside. 4. Mr. K. Mohanamurali, learned standing counsel for the second respondent Department contended that the Customs Excise and Service Tax Appellate Tribunal rightly rejected the appeal filed by the appellant and the conduct of the appellant clearly shows that there was an intention to evade payment of duty and payment of duty prior to issuance of show cause notice would not automatically absolve the appellant from levy of penalty. In support of his contention, the learned standing counsel placed reliance on the judgment of the Supreme Court in Union of India vs. Rajasthan Spinning & Weaving Mills [ 2009 (238) E.L.T. 3 (S.C.)]. 5. We have considered the rival submissions and perused the materials available on record. 6. The Honourable Supreme Court in the decision of Union of India (supra) held that payment of differential duty, whether before or after the show cause notice is issued, cannot alter the liability for penalty and the condition for which are clearly spelt out in Section 11AC of the Central Excise Act. The Honourable Supreme Court pointed out that penalty under Section 11AC of the Central Excise Act, as the word suggest, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the Section. The Honourable Supreme Court pointed out that penalty under Section 11AC of the Central Excise Act, as the word suggest, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the Section. Therefore, the contention of the appellant that the duty was paid prior to issuance of show cause notice does not in any manner advance its case. The question that has to be considered is whether there is intention to evade payment of duty. The period which is subject matter of issue was 2001-02. The Enforcement Wing of the respondent Department visited the appellant's factory on 23.12.2003 i.e., nearly after about two years after the relevant period i.e. 2001-02. In the course of such surprise inspection, the stock was verified and the accounts of the appellant were scrutinized. On such verification and scrutiny, it came to light that the appellant adopted a notional price in respect of consignment sales and they had admitted that there was some delay in receipt of sale patties from the consignment agents and the Director of the Company admitted the liability and accepted to pay the differential duty. The Original Authority after considering the materials placed before him pointed out that as declared in the invoices that the removals specified in the notice are towards consignment agents, the responsibility of paying differential duty lies with the noticee. The Original Authority further pointed out that when the appellant was conscious of the notional value for sale towards consignment agent, the responsibility of paying differential duty is rest on the appellant. More so, when they had earlier been paying differential duty for such consignment sales, the plea of the assessee was liable to be rejected. Admittedly, the matter would not have come to light but for the surprise inspection done by the Enforcement Wing of the respondent Department. If it was a genuine case where the appellant could not remit the differential duty on account of delay in receipt of sale patties, as soon as they have been received they ought to have remitted the differential duty. But that was not done and they intentionally withheld payment of differential duty for the subsequent period which clearly established that there was willful intention to evade payment of duty. 7. But that was not done and they intentionally withheld payment of differential duty for the subsequent period which clearly established that there was willful intention to evade payment of duty. 7. In the light of the above discussion, the question of law raised by the appellant viz., whether penalty and interest are leviable when duty has been paid before issuance of show cause notice has to be necessarily answered against the appellant in the light of the judgment of the Supreme Court in Union of India vs. Rajasthan Spinning & Weaving Mills [ 2009 (238) E.L.T. 3 (S.C.)]. As regards the contumacious conduct of the appellant in willfully evading payment of duty, we find no reason to interfere with the factual finding recorded by the Appellate Authority and confirmed by the Tribunal. 8. In the result, the Civil Miscellaneous Appeal fails and the same stands dismissed. No costs. Consequently, the connected miscellaneous petition is closed.