2010 (12) TMI 1155

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....he Act), the Commissioner of Central Excise & Customs, Surat-I has challenged order dated 16th July, 2009 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following questions. "(a) Whether the impugned order of the Tribunal has been passed in accordance with law? (b) Whether Section 35A read with Section 11AC of the Central Exc....

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....the assessee preferred appeal before the Commissioner (Appeals) who confirmed the demand of duty but reduced the penalty to 25% of the duty amount if the same is paid within a period of 30 days of the receipt of the said order. Against the order of Commissioner (Appeals), Revenue preferred the appeal before the Tribunal which came to be disposed of by recording the following findings. "......

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....though I have held that such benefit is strictly available from 30 days of passing order of the first adjudicating order, were option has been given, the extension of such period from the date of passing of the appellate order, where no such option was given by the adjudicating authority cannot be faulted. As such in these peculiar facts and circumstances of the case, the option given by Commissio....

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.... 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 to 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 b....