JUDGMENT : D.N. Patel, J. This appeal has been preferred against the judgment and order delivered by the Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, in Appeal No. Ex. A.P. 401 of 2005, whereby the appeal preferred by' this appellant was dismissed by Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, (here in above to be referred as the CESTAT), vide order dated 10th February, 2012 and the order-in-original passed by Joint Commissioner, Central Excise dated 8th February, 2005 was confirmed, especially the order of mentioning of Rs. 5,85,964/- penalty imposed under Section 11-AC of the Central Excise Act, 1944, upon this appellant, because the duty was already determined under Section 11-A(2) of the Central Excise Act, 1944 was confirmed. 2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that this appellant is a manufacturer of Emulsion Matrix falling under Chapter heading 30.02 of the First Schedule to the Central Excise Tariff Act, 1985. This appellant was stock transferring their intermediate product i.e. Emulsion Matrix from the place of manufacturing to its sister units located at Rajarapa and Rajmahal for the manufacturing of finished goods i.e. Emulking. 3. It further appears from the facts of the case that there was clandestine removal of the goods, especially of the intermediate products and, the goods were under-valued and thereby the Central Excise Duty was evaded. Thus, there was a evasion of the duty by this appellant by under valuing in the invoice of their intermediary product, sent from the manufacturing unit to the sister units for further captive conservations. 4. Ultimately, a show-cause notice was issued dated 13th August, 2004 and there was an allegation of wilful mis-declaration and suppression of facts by this appellant, resulting in loss of revenue to the exchequer. This appellant evaded the Central Excise Duty of an approximately Rs. 5,85,964/- during the period 2001-02 and 2002-03. There was also further evasion of the duty of Rs. 24,557/- for the removal of different type of raw materials in the year, 2003-04 as well as the aforesaid goods. There were violations of Central Excise Rules as stated in the show-cause notice. 5. 5,85,964/- during the period 2001-02 and 2002-03. There was also further evasion of the duty of Rs. 24,557/- for the removal of different type of raw materials in the year, 2003-04 as well as the aforesaid goods. There were violations of Central Excise Rules as stated in the show-cause notice. 5. Adequate opportunity of being heard was given to the appellant and ultimately the following order was passed by the Joint Commissioner, Central Excise on 8th February, 2005, under Section 11-AC of the Central Excise Act, 1944. "I impose mandatory penalty of Rs. 5,85,964/- on GOCL." 6. It further appears from the facts of the case that the demand of the duty under Section 11-A(2) of the Central Excise Act. 1944, was confirmed. 7. The aforesaid amount has also been by this appellant without preferring any appeal against the confirmation of duty under Section 11-A(2) of the Central Excise Act, 1944. Thus, there was no challenge by this appellant, so far as confirmation of the demand of duty is concerned. 8. Under Section 11 AB of Central Excise Act, 1944, there was an order for recovery of interest on the amount of Rs. 5,85,964/-. The amount of interest has also been paid by this appellant after loosing the matter before the High Court in an appeal preferred by the respondent-department. 9. Now, the only bottle neck is the penalty imposed by the respondent of Rs. 5,85,964/- under proviso to Section 11-A of Central Excise Act, 1944. Initially an appeal was preferred before the Commissioner (Appeals), so far as the penalty is concerned. The appeal preferred by this appellant was dismissed and the order of penalty imposed under proviso to Section 11-A was confirmed. 10. Thereafter, this appellant preferred further appeal before the CESTAT, where the penalty imposed by the respondent-department was quashed and set aside and that order was challenged by the respondent-department in an appeal before this Court being Tax Appeal No. 4 of 2007 and this Hon'ble Court allowed the tax appeal preferred by the respondent-department and the matter was remanded to the CESTAT, on the basis of the decisions rendered in the case of CCE v. Machino Montell (I) Ltd. as reported in 2004 (168) ELT 466 and the decision referred in the case of Rashtriya Ispat Nigam Ltd. v. CCE, as reported in 2003 (161) ELT 285. 11. 11. Thereafter, CESTAT, again decided the matter vide order dated 8th/10th February, 2012 in Appeal No. Ex. A.P. 401 of 2005, whereby, the East Zonal Bench, Kolkata has confirmed the penalty imposed upon this appellant under the provision to Section 11-A of the Central Excise Act, 1944, is confirmed, there was a clandestine removal of the goods and there was under valuation in the invoice of the intermediate product, shifted from the place of manufacturing to the places of sister units concerned for further manufacturing of the final product. This evasion of the duty by wilful mis declaration and suppression of facts, which resulted into loss of revenue, has already been established. Moreover, there is no challenge of the finding in the order-in-original, which is against this appellant. Appellant has never challenged this finding, so far as imposition of the duty of confirmation of the demand under Section 11-A(2) before CESTAT is concerned. On the contrary the demand confirmed under Section 11-A(2) has already been paid with interest. 12. Thus, looking to the decisions, as stated here in above, and also looking to the judgment of the Hon'ble Supreme Court in the case of Union of India v. Rajasthan Spinning and Weaving Mills, reported in (2009) 13 SCC 448 , it has been held hereunder : "27. One cannot fail to notice that both the provisos to sub-section (1) of Section-11-A and Section 11-AC use the sayne expressions : “........by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty....” 28. In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11-A(1) states that the escaped duty was the result of any conscious and deliberate wrongdoing and in the order passed under Section 11-A(2) there is a legally tenable finding to that effect then the provision of Section 11-AC would also get attracted. It, therefore, follows that if the notice under Section 11-A(1) states that the escaped duty was the result of any conscious and deliberate wrongdoing and in the order passed under Section 11-A(2) there is a legally tenable finding to that effect then the provision of Section 11-AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under Section 11-A(2) there would be no application of the penalty provision in Section 11-AC of the Act. On behalf of the assesses, it was also submitted that Sections 11-A and 11-AC not only operate in different fields but the two provisions are also separated by time. The, penalty provision of Section 11-AC would come into play only after an order is passed under Section 11-A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting a means as indicated in Section 11 - AC." (emphasis supplied) 13. In view of the aforesaid decision and in view of the further two decisions in the case of CCE v. Machino Montell (I) Ltd., as reported in 2004 (168) ELT 466 as well as a decision in another case in Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam, as reported in 2003 (161) ELT 285, no error has been committed by the CESTAT, Kolkata, in dismissing the appeal preferred by this appellant and in confirming the amount of the penalty imposed upon this appellant under proviso to Section 11-A of Central Excise Act, 1944. 14. Even if the duty amount is paid prior to the issuance of the show-cause notice, that does not mean that the assessee is not liable to make the payment of the penalty, especially when the show-cause notice is issued mainly on the ground of wilful mis-declaration and suppression of facts, resulting in loss of revenue and when there is a clandestine removal of the goods by under-valuating the same in the invoices of the goods, which are removed unauthorisedly. In the facts of the present case as stated here in above order-in-original has been passed confirming the demand under Section 11-A(2) of the Act and with interest the amount has already been paid by this appellant. This order has also been confirmed in the appeal and there is no further appeal, so far as confirmation of the demand of the Central Excise Duties is concerned. The only penalty part was under challenge by this appellant in a CESTAT. Thus, once there is a clandestine removal of the goods by the appellant by under-valuating the intermediate products, then it is bound to make payment of the penalty under proviso to Section 11-A of the Central Excise Act, 1944 and thus, no error has been committed by the CESTAT, Kolkata, Bench in dismissing the appeal preferred by this appellant and hence, there being no substance in this appeal, the same is hereby dismissed, with a cost of Rs. 10,000/- which shall be deposited by this appellant within a period of four weeks from today to the Co-operative Society, namely, Jharkhand High Court Middle Income Group. Legal Aid Society, Nyaya Sadan Doranda, Ranchi. 15. A copy of this order will be sent by the Registrar General of this Court to the Member Secretary. Jharkhand State Legal Services Authority, Nayay Sadan, Doranda, Ranchi. Appeal dismissed.