2016 (11) TMI 787

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..... After due process of law, the Adjudicating Authority confirmed and appropriated Rs. 23,07,385/- alongwith interest of Rs. 8,68,576/- and imposed penalty of Rs. 9,67,373/- under Section 78 of the Finance Act, 1994 and gave option to the appellant to pay 25% within 30 days of the receipt of the Order-in-Original. The revenue being aggrieved, preferred an appeal before the Ld. Commissioner (Appeals)  who rejected the department's appeal and upheld the Order-in-Original. 2. S.Mukhopadhyay, Suptd.(AR) appearing on behalf of the appellant reiterated the grounds of appeal and submits that; i) The Commissioner (Appeals) has erred in finding that the Department had gone in appeal against the option given to the appellant assessee to pa....

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.... The Commissioner (Appeals) has failed to take note of the fact that this was the purport of Para (iii) of the Department's appeal which read as & to quote;  That the adjudicating authority had erred in not appreciating the fact that after the delivery of the judgment of the Hon'ble Apex Court in the matter of Union of India vs. Rajasthan Spinning & Weaving Mills reported in [2009(238) ELT(SC) cited supra, Board issued a Circular No.889/09/2009-CX dated 21.05.2009 clarifying that when the conditions spelt out under Sec.11 AC of the Central Excise Act, 1944 are fulfilled, there is no discretion available to the adjudicating authority to reduce the mandatory penalty equal to the duty even though duty has been paid before the issuance....