TaxTMI 
TaxTMI 
2010 (2) TMI 560
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.... "Whether in the facts and circumstances of the case, the Tribunal is justified and has committed a substantial error of law in reducing the mandatory penalty imposed on the respondent-assessee under Section 11AC of 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 t....
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....al Excise duty pay able by the respondent as on the date of the said search. The respondent having faced with the situation deposited sum of Rs. 38,892/-, being duty liability, on 22-12-2001. The show cause notice was issued on 13-6-2002. The adjudicating authority has passed order dated 9-5-2(106 demanding duty of Rs. 2,53,856/- and also demanded interest at the appropriate rate from the respondent under Section 11AB of the Act and also imposed penalty of Rs. 2,53,856/- under Section 11AC of the Central Excise Act, 1944. The respondent preferred appeal and the Appellate Commissioner by his under dated 9-5-2006 confirmed order of duty demand made by the adjudicating authority and reduced penalty under Section 11AC of the Act from Rs. 2,53,8....
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....td., 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 - Chennai) and such other cases, the Tribunal was required to allow department to levy penalty on the respondent for the amount equivalent to his duty liability and pass order accordingly. 8. Mr. Oza has further submitted that the impugned order of the Tribunal is in disregard o....
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....007 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 Excise & Customs v. Rama Syn silk Mills P. Ltd., decided on 214-2010 [2010 (254) E.L.T. 277 (Guj.)]. This Court after considering the decision of Commissioner of Central Excise v. Malbro Appliances, 2007 (79) RLT 109 (Delhi), Union of India v. Dharamendra Textiles, 2008 (231) E.L.T. 3 (S.C.), Union of India v. Rajasthan Spinning & Weaving Mills, 2009 (238) E.L.T. 3 (S.C.), K. P. Pouches (P) Ltd. v. Union of India, 2008 (228) E.L.T. 31 (Delhi), Commissioner of Central Excise, Rohtak v. J.R. Fabric Pvt. Ltd., 2009 (238) E.L.T. 209, has taken the view that the order passed by the Tribunal retaining the penal....
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..... 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 open for the revenue to agitate this issue before the Court in contradiction of the Circular issued by the Central Excise Department. This Court in Messers Exotic Associates (supra) has directed the adjudicating authority to pass a fresh order giving option to the assessee to pay the duty amount within 30 days by....