JUDGMENT : S.J. VAZIFDAR, J. This is an appeal under section 35G of the Central Excise Act, 1944 (hereafter referred to as “the Act”) against the order of the Customs Excise and Service Tax Appellate Tribunal dismissing the appellant’s appeal. 2. The appeal is admitted on the following substantial questions of law raised by the appellant:- (i) Whether the appellant was entitled to the benefit of payment of only 25% of the penalty? (ii) Whether an assessee is liable to pay penalty only to the extent of the balance unpaid amount of the duty determined under section 11A(2) of the Act? The first question was raised in the appeal. The second was raised before us on an oral application. We have decided both the questions against the assessee. 3. The relevant facts are as follows. On 04.07.2008, the DGCEI searched the appellant’s premises. On 04.07.2008 itself, the appellant paid duty amounting to Rs.5,22,759/-. The appellant contends that this was the amount indicated by the authorities during the search as being payable by the appellant. On 05.10.2009, the respondent issued a notice calling upon the appellant to show cause as to why the appellant ought not to be liable to pay duty amounting to Rs.6,00,247/-. On 08.08.2010, the Commissioner (Appeals) directed the appellant to deposit the balance duty and pay the penalty as pre-deposit. On 16.09.2010, the appellant deposited the balance duty of Rs.77,498/-. On 30.09.2013, the Commissioner (Appeals) dismissed the appellant’s appeal and on 22.01.2016, the Tribunal, by the impugned order, dismissed the appellant’s appeal. The Tribunal denied the appellant the benefit of reduced penalty. The appellant deposited 25% towards penalty in instalments of Rs.60,000/- and Rs.90,086/- on 22.09.2016 and 04.01.2017, respectively. 4. Section 11AC of the Act reads as under:- “11AC. On 30.09.2013, the Commissioner (Appeals) dismissed the appellant’s appeal and on 22.01.2016, the Tribunal, by the impugned order, dismissed the appellant’s appeal. The Tribunal denied the appellant the benefit of reduced penalty. The appellant deposited 25% towards penalty in instalments of Rs.60,000/- and Rs.90,086/- on 22.09.2016 and 04.01.2017, respectively. 4. Section 11AC of the Act reads as under:- “11AC. Penalty for short-levy or non-levy etc., in certain cases: Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement 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, the persons who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined: Provided that where such duty as determined under sub section (2) of section 11 A, and the interest payable thereon under section 11 AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty five percent of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be shall be taken into account: Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeal), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation:- for the removal of doubts, it is hereby declared that – (1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the Present; (2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.” Re: Question No.1: 5. The imposition of the duty is not challenged. The only question is whether the appellant is liable to pay the penalty and, if so, whether the appellant is liable to pay the entire penalty or only the penalty on the balance unpaid amount of the duty of excise. Even assuming that appellant paid the duty amounting to Rs.5,22,759/- on 04.07.2008 as per the instructions of the respondents, it would make no difference. The fact is that the adjudicating authority, by the order dated 02.03.2010, confirmed the duty amounting to Rs.6,00,247/-. The appellant deposited the balance duty of Rs.77,498/- only on 16.09.2010, i.e., beyond the period of 30 days from the date of the order-in-original passed by the adjudicating authority. 6. Under the opening part of section 11AC, the appellant was liable to pay the duty as also the penalty equal to the duty so determined. A party is, however, absolved of the liability to pay the entire penalty and is liable to pay the amount of penalty to the extent of 25% of the duty provided, however, that the duty as determined under sub-section (2) of section 11A and the interest payable thereon is paid within 30 days of communication of the order of the Central Excise Officer (CEO). The appellant, admittedly, paid the duty beyond the period of 30 days from the date of the communication of the order of the CEO, namely, 02.03.2010. The balance amount was paid only on 16.09.2010. The first proviso, therefore, does not come to the appellant’s assistance. 7. The second proviso comes to the appellant’s assistance in view of the judgment of a Division Bench of this Court in the case of Commissioner of Central Excise, Rohtak vs. J.R. Fabrics (P) Ltd., 2009(238) E.L.T. 209 (P&H). The Division Bench held:- “12. The first proviso, therefore, does not come to the appellant’s assistance. 7. The second proviso comes to the appellant’s assistance in view of the judgment of a Division Bench of this Court in the case of Commissioner of Central Excise, Rohtak vs. J.R. Fabrics (P) Ltd., 2009(238) E.L.T. 209 (P&H). The Division Bench held:- “12. The order in original also imposes penalty of Rs. 5,10,995/- which is equal to the amount of duty of excise assessed by the Adjudicating Authority. It is thus evident that acting on 2nd proviso the amount of penalty to the extent of 25% could not have been deposited and order was passed by the Adjudicating Authority in derogation of the express provision made by the 2nd proviso and there was no opportunity for the dealer- respondent to deposit 25% of the amount. Accordingly he challenged the order in appeal where again the demand of penalty equivalent to duty of excise was maintained (although some relief was given regarding personal penalty imposed on Shri Satish Kumar, Managing Director). It was thereafter that an appeal was filed and the Tribunal reduced the penalty to 25% of the total amount of duty of excise as assessed by the concerned officer. The Tribunal had primarily placed reliance on a judgement of the Delhi High Court in the case of Malbro Appliances (Private) Ltd. (supra).” 8. The judgment comes to the appellant’s assistance only in respect of the second proviso but not the first proviso in view of the appellant not having complied with the conditions precedent of the first proviso, namely, the payment of the duty and interest determined under section 11A(2) and Section 11AB, respectively, within 30 days of the communication of the order of the adjudicating authority. The first Proviso not having been complied with, the appellant is not entitled to the benefit of the second Proviso. Thus, the appellant is not entitled to the benefit of the reduced duty. 9. Question No.1 is, therefore, answered in favour of the respondent and against the appellant. Re: Question No.2: 10. This issue, as we noted, was not raised before the Tribunal. We will, however, presume that being a substantial question of law, the High Court is entitled to raise the same. 11. Mr. 9. Question No.1 is, therefore, answered in favour of the respondent and against the appellant. Re: Question No.2: 10. This issue, as we noted, was not raised before the Tribunal. We will, however, presume that being a substantial question of law, the High Court is entitled to raise the same. 11. Mr. Bansal submitted, in the alternative, that the appellant ought to be liable to pay the penalty only in respect and to the extent of the balance unpaid amount of the duty as determined under section 11A(2). Thus, in the present case, according to him, the penalty ought to be paid only in respect of Rs.77,498/- which is the amount of duty that was not paid till after the expiry of the period of 30 days from the date of communication of the order of the CEO determining the duty of Rs.6,00,247/-. 12. A consideration of the submission also requires a reference to section 11A which reads as under:- “11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. 12. A consideration of the submission also requires a reference to section 11A which reads as under:- “11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. — (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement 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, by such person or his agent, the provisions of this sub-section shall have effect, [as if, [x x x x] for the words [one year], the words “five years” were substituted: Explanation. — Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer, - (a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement 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, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and (b) in any other case where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub-section (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short- paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him under subsection (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded 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. Explanation 2. - For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this subsection. (2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. (3) For the purposes of this section, - (i) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) “relevant date” means, - (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid – (A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund.” 13. Under section 11AC, where any duty of excise has not been paid or has been short-paid, etc., the person who is liable to pay the duty, as determined under sub-section(2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined. Thus, the penalty is not to the extent of the entire duty but only to the extent of the duty so determined, to wit, determined under section 11A(2). The quantum of the penalty is equal to the duty so determined. Therefore, the quantum of the penalty is equal to the quantum of the duty determined under section 11A(2). 14. The first proviso reduces the quantum of penalty to 25% of the duty determined, if such duty and interest is paid within 30 days from the date of the communication of the order of the Central Excise Officer. The Legislature has granted an incentive of reduced penalty in the event of the duty, as determined under section 11A(2) and the interest payable thereon under section 11AB being paid within 30 days from the date of the communication of the order of the CEO. Under the first proviso where the duty, as determined, and the interest thereon is paid within the period stipulated, the amount of penalty liable to be paid is 25% of the duty so determined. The proviso confers an incentive or a benefit upon the assessee by reducing the quantum of penalty in the event of the assessee paying the duty and interest thereon within the stipulated period. To our mind, the words “such duty as determined” and the words “the interest payable thereon” refer to the entire duty determined and the entire interest payable and not to just a part thereof. 15. The plain language of the first proviso militates against Mr. Bansal’s submission. The concession of a reduced quantum of penalty is only where the duty as determined and interest payable thereon is paid. The first proviso does not confer the benefit if only a part of the duty as determined and the interest payable thereon is paid within the stipulated period of 30 days from the date of communication of the order of the CEO. Had that been the intention, the proviso would have been worded entirely differently or a provision to that effect would have been included in the section. Had that been the intention, the proviso would have been worded entirely differently or a provision to that effect would have been included in the section. The assessee is entitled to assess its liability and to take a chance by paying an amount less than the duty as determined under section 11A (2) and the interest payable thereon under section 11AB. If the assessee takes the risk successfully, it is protected by the third proviso to section 11AC. But then it takes the risk of forgoing the benefit of the reduced quantum of penalty if its assessment is not accepted. 16. This view is supported by the third proviso. In the third proviso, where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal or the Court, it is the duty, as reduced, that must be taken into account for the purpose of section 11AC. In other words, for the purpose of section 11AC, which includes the provisos thereto, the duty determined by the final order is to be taken into account. Thus, even for the purpose of the first proviso, the duty determined refers to the duty determined not by the adjudicating authority but by the order that attains finality, be it the order of the Commissioner (Appeals), the Appellate Tribunal or the Court. Whether the third proviso is substantive or only clarificatory of the first proviso is immaterial. Where the Legislature intended providing an exception or clarifying a provision it did so specifically. There is nothing in section 11AC that entitles the assessee to the benefit of the reduced quantum of penalty, if only a part of the duty, as determined, and the interest payable thereon is paid. 17. The reason for this is obvious. Absent the first proviso where the ingredients of section 11AC exist, the assessee is liable to pay a penalty equal to the duty so determined. The first proviso confers a concession but not a concession simpliciter. It is a concession in the form of an incentive to the assessee to pay the duty as determined under section 11A(2) and the interest payable thereon with a purpose. The concession is obviously to safeguard the Revenue as well as to facilitate the recovery of duty. To the benefit granted to the assessee is the corresponding benefit to the Revenue. The safeguard can be in different ways. The concession is obviously to safeguard the Revenue as well as to facilitate the recovery of duty. To the benefit granted to the assessee is the corresponding benefit to the Revenue. The safeguard can be in different ways. Firstly, it ensures a trouble-free recovery of the duty and interest, if ultimately found payable. That is the reason for the incentive. If only a part of the amount due towards duty and interest is paid, it would not serve this purpose. The Revenue would then have to execute the order for the balance amount due. The time, effort and expense in recovering a part may well be the same as the time, effort and expense in recovering the whole. This purpose for the incentive would then be defeated. 18. The injustice caused by a wrong determination is righted by the third proviso under which the reduced duty determined to be payable is to be taken into account for the purpose of section 11AC which would also include the first proviso. Fairness, therefore, is established. No prejudice, therefore, is caused to the assessee. If the assessee wishes to speculate as to the outcome of the further proceedings, he must do so at his own risk. 19. To reiterate, the first proviso grants an assessee a concession, namely, a reduced penalty but on the condition that the entire duty as determined under section 11A(2) and the interest thereon is paid within the period stipulated. It is also important to note that the benefit is granted not to an assessee with whom the Revenue has a genuine difference in perception as to the amount of duty payable but to an assessee who is guilty of fraud, collusion or any wilful mis-statement 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. 20. 20. The Legislature has treated cases where the duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement 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 differently from cases where the duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded otherwise than for such reasons. For instance, in section 11A, a notice to show cause why the assessee should not pay the amount specified in the notice is to be served within one year from the relevant date in normal cases whereas it is to be served within five years in cases of fraud, collusion or any wilful mis-statement 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. Further, the time granted to determine the amount due under section 11A, in normal cases, is six months, whereas, it is one year in cases involving fraud, collusion, etc. Further, sub-section (2B) of section 11A provides that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of a duty ascertained by a CEO before service of a notice on him under sub-section (1) in respect of the duty and inform the CEO of such payment in writing and upon receipt of such information the CEO shall not serve any notice under sub-section (1) in respect of the duty so paid. Explanation 1 clarifies that this benefit shall not apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion, etc. with intent to evade payment of duty. These provisions establish that the Legislature has dealt with cases of fraud, etc. differently from cases which do not involve fraud, collusion, etc. with intent to evade payment of duty. These provisions establish that the Legislature has dealt with cases of fraud, etc. differently from cases which do not involve fraud, collusion, etc. It is important, therefore, to bear in mind that the concession granted under the first proviso to section 11AC is to a person who has been guilty of fraud, collusion, etc. 21. Even assuming that another view is possible, we are not inclined to take the view in favour of the assessee in a case under section 11AC for it involves an assessee who has been found guilty of fraud, collusion, etc. 22. In the circumstances, the second question is also answered against the appellant and in favour of the Revenue. 23. In the result, the appeal is dismissed.