2012 (8) TMI 933

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....1.1 While admitting the appeal, this Court formulated the following substantial question of law for consideration and determination. "Whether the Tribunal below committed substantial error of law in giving benefit of the reduced penalty by totally misconstruing the proviso to Section 11AC of the Central Excise Act, 1944 ?" 2. We heard learned Ms. Manisha Lavkunkar for the appellant/department. None appeared for the respondent, though served 3. The controversy is in narrow compass. Noticing the relevant facts in brief, the respondent-assessee was engaged in the manufacture of Prestressed Concrete Poles, commonly known as PSC Poles falling under Chapter 68.07 of CETA, 1985. The said assessee was not registered with the department. In cour....

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....applicable rate should be charged under the provision sectionit111AB of Central Excise Act, 1944. 4. I do not impose penalty on Shri Bhanubhai Hargovindas Proprietor of M/s G.P. Prestress Concrete Works." 3.1 The assessee preferred appeal before the Commissioner (Appeals), Central Excise, who upheld the finding given by adjudicating authority and accordingly confirmed the duty. He, however, set aside the interest under Section 11AB of the Act and equivalent penalty of Rs. 24,32,615/- under Section 11AC of the Act imposed on the appellant. Thereafter, the respondent preferred appeal before the Custom, Excise and Service Tax Appellate Tribunal against the order of the Commissioner. The Tribunal gave option to the assessee to deposit the e....

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....rules made thereunder with intent to evade payment of duty, the person 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 11A, and the interest payable thereon under section 11AB, 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 twentyfive per cent. 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 als....

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....e, if the amount is deposited within a period of 30 days of the communication of such order of enhancement. 5. In the impugned order, the tribunal has relied on its own decision in C.C.E. Vs. Swati Chemicals Industries Ltd. [2009 (248 ELT) 421], which held that giving of such option at the appellate stage is permissible. Thereafter, this High Court has in C.C.E. Vs. Harish Silk Mills [2010 (255) ELT 393] and in C.C.E. Vs. Gopal Fibres Pvt. Ltd. [2010 (256) ELT 10], observed that the option to pay within 30 days under the Proviso concerned to section 11AC of the Act, if not given by the adjudicating authority, such option should be given to the assessee at the appellate stage and the period of 30 days would commence from the date of giving ....