TaxTMI 
TaxTMI 
2010 (2) TMI 494
X X X X Extracts X X X X
X X X X Extracts X X X X
....cumstances of the case, the Tribunal has committed a substantial error of law in reducing the mandatory penalty imposed on the respondent assessee under Section 11AC of the Central Excise Act, 1944 to the extent of 25% despite having confirmed the duty on account of clandestine removal and evasion of Central Excise duty?" 3. Heard Mr. R.J. Oza, learned Standing Counsel appearing for the Revenue and perused the order passed by the authorities below. 4. At the time of hearing of this Tax Appeal Mr. Oza reframed the substantial questions of law which are as under :- (a) Whether or not benefit of reduced penalty under proviso to Section 11AC of the Central Excise Act, 1944 can be extended to such person who has not paid amount of inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tribunal has not recorded any reasons setting out facts of the case of the respondent and has mechanically passed order extending benefit of reduced penalty on the respondent. He has further submitted that the team of Central Excise Officers had carried search of the respondent's premise on 15-10-2001 and detected evasion of Central Excise duty payable by the respondent as on the date of the said search. The respondent having faced with the situation deposited sum of Rs. 2,16,256/- between 5-12-2001 to 20-12-2001. The show cause notice was issued on 7-4-2005. The adjudicating authority has passed order dated 25-1-2001 demanding duty of Rs. 2,16,256/-and interest @ 24% per annum from the 1st of the month succeeding the month in which the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... applied because the facts of the case on hand are not identical to the facts of the case of the assessee in the Malbro Appliances P. Ltd. (supra). On the contrary, in view of settled proposition laid down by the Punjab and Haryana Court in the case of Machino Montell (I) Ltd., reported in 2006 (202) E.L.T. 398 (P & H) = 2006 (4) S.T.R. 177 (P & H) as well as judgments of the Apex Court in the case of Rajasthan Spinning & Weaving Mills, reported in 2009 (238) E.L.T. 3 (S.C.). Dharamendra Textile Processors, reported in 2008 (231) E.L.T. 3 (S.C.), and decisions of the Tribunal in the case of Jawala Steels Pvt. Ltd., reported in 2009 (238) E.L.T. 694 (Tri. - Kolkata), and Ponneri Steel Industries, reported in 2009 (238) E.L.T. 295 (Tri. - Che....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stified in reducing the penalty to 25% of the duty leviable on the respondent. All these aspects of the main question are already considered by this Court in its order dated 18-11-2009 in the case of Messers Exotic Associates v. Commissioner of Central Excise (Tax Appeal No. 572 of 2007 with Tax Appeal No. 869 of 2007 [2010 (252) E.L.T. 49 (Guj.)], and Tax Appeal No. 1942 of 2008, in the case of Commissioner of Central Exicse & Customs v. Rama Synsilk Mills P. Ltd. decided on 21-1-2010. This Court after considering the decision of Commissioner of Central Excise v. Malbro Appliances, 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.) = 2007 (79) RLT 109 (Delhi), Union of India v. Dharamendra Textiles, 2008 (231) E.L.T. 3 (S.C.) Union ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9 (Guj.)]. It is also important to note that the adjudicating authority has not calculated the interest neither in the order-in-original nor even thereafter. It is, therefore, too much to expect from the respondent assessee to pay the interest alongwith the duty amount in absence of such calculation of interest. As far as statutory obligation of the adjudicating authority is concerned, the Central Excise Department itself has issued Circular on 22-5-2008 wherein it is clarified that in all cases wherein penalty under Section 11AC of the Act is imposed the provisions contained in the first and second proviso of Section 11AC should be mandatorily mentioned in the order-in-original itself by the adjudicating authority. It is, therefore, not op....