TaxTMI 
TaxTMI 
2010 (2) TMI 630
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....ts and circumstances 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 ....
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.... 5. Mr. Oza submitted that the 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 17-8-2001 and detected evasion of Central Excise duty payable by the respondent as on the date of the said search. The show cause notice was issued on 28-3-2003. The adjudicating authority has passed order dated 30-4-2004 demanding central excise duty amounting to Rs. 16,49,237/- and cess Rs. 17,237/- under Section 11(A)(2) of the Central Excise Act, 1944 and also ordered to recover interest at the appropriate rate on....
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....) of the Act on the date of detection of evasion of duty itself. He has further submitted that the decision in the case of Malbbro Appliances P. Ltd., reported in 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.), also cannot be 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, report....
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....de by Mr. Oza and also perused very minutely the order passed by the authorities below. As a matter of fact, all these questions reframed by Mr. Oza are different facets of the main question as to whether the Tribunal is justified 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 [2010 (252) E.L.T. 49 (Guj.)] 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 and Tax Appeal No. 1942 of 2008 in the case of Commissioner of Central Excise & Customs v. Rama Synsilk Mills P. Ltd. decided on 21-1-2010 [2010 (254) E.L.T. 277 (Guj.)]. This C....
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.... of the Central Excise Act and to give an option to such person liable for penalty under that Section. Both these issues were dealt with by this Court in Tax Appeal No. 572 of 2007 with tax Appeal No. 869 of 2007 decided on 18-11-2009. 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 Se....