TaxTMI 
TaxTMI 
2013 (11) TMI 984
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....he goods found short in the appeal of M/s Shakti Gramodyog Sansthan is of Rs. 2,04,709/- and the duty involved on the goods found short in the appeal filed by M/s Condor Footwear (U.P.) Pvt. Ltd. is of Rs. 1,60,126/-. In both the cases the original Adjudicating Authorities confirmed the duty demand on the goods found short and beside this, imposed penalty of equal amount under Section 11AC. However, on appeals being filed to Commissioner (Appeals), the Commissioner (Appeals) vide two separate orders while upholding the duty demands, set aside the penalty on the ground that the entire duty had been paid before the issue of the show cause notice. On appeals being filed by the Department against the part of the Commissioner (Appeals)s orders ....
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....so to Section 11AC in the light of the judgment of Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. vs. UOI (supra), that in terms of this judgment when the entire disputed amount of duty has been paid, alongwith interest, if any, payable before the issue of show cause notice and in spite of this, no option has been given by the adjudicating authority to pay lower penalty in terms of proviso to Section 11AC by paying the amount equal to 25% of the duty demand as penalty, within 30 days of communication of the adjudication order, the assessee cannot be deprived of the benefit of lower penalty under proviso to Section 11AC, that same view has been taken by Hon'ble Gujarat High Court in the case of CCE, Vapi vs. Union Quality Pla....
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....ct or of the Rules made thereunder with intent to evade the payment of duty, the penalty equal to the duty demand under Section 11AC would be imposable and there is no discretion for the Adjudicating Authority to impose lower penalty. He, therefore, pleaded that there is no infirmity in the impugned orders. 6. I have considered the submissions from both the sides and perused the records. 7. The dispute of these two appeals is only on the question, as to whether the benefit of reduced penalty in terms of proviso to Section 11AC should be extended or not. In both the cases, the disputed amount of duty on the goods found short has been paid even before the issue of show cause notice and there was no option given to the appellants in the ....
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....ble Punjab & Haryana High Court in the case of CCE, Rohtak vs. J.R. Fabrics (P) Ltd. (supra), and Hon'ble Gujarat High Court in the case of CCE, Surat- I vs. Harish Silk Mills (supra) and also in the case of CCE, Surat -II vs. Gopal Fibres Pvt. Ltd. (supra), has held that where the entire amount of duty alongwith interest, if any, payable, had been paid before the issue of show cause notice and still in the order-in-original passed by the Adjudicating Authority, no option had been given to the assessee to avail of the option of lower penalty equal to 25% of the duty demand by paying the same within 30 days of communication of the order, the benefit of lower penalty under proviso to Section 11AC cannot be denied. In this case, there is no di....