2018 (7) TMI 2333
X X X X Extracts X X X X
X X X X Extracts X X X X
.... also levying interest under Section 11AB of the Act of 1944 and imposing penalty of Rs. 1,37,55,732/- for having committed fraud with intent to evade Central Excise Duty. 2. Mr.Kartik Kurmi, learned counsel for the petitioner restricting his submission to a singular contention, would submit that learned Adjudicating Authority while passing the impugned order has failed to comply with the circular dated 22.5.2008 issued by the Central Board of Excise & Customs which has been read by the Delhi High Court in the matter of K.P. Pouches (P) Ltd. v. Union of India 2008 (228) E.L.T. 31 (Del.) and therefore, the part of impugned order not quantifying the interest and not giving option as per first proviso to Section 11AC (unamended) of the Act of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....interest payable thereon under section 11B, 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 twenty-five 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 also been paid within the period of thirty days preferred to in that proviso : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Excise & Customs on 22.5.208 issued a circular in which it has been held as under:- "3. In view of the points as discussed above, Board has decided that in all the cases, wherein penalty under section 11AC of the Act is imposed, the provisions contained in first and second proviso to section 11AC should be mandatorily mentioned in the Order-in Original itself by the adjudicating authority." Thus Delhi High Court has directed the adjudicating authority to comply with first and second provisos mandatorily and further held that it must be mentioned in order-in-original. 8. Not only this, subsequently, the High Court of Gujarat in the matter of Commissioner of C.Ex.& Cus., Surat-II v. Gopal Fibres Pvt. Ltd. 2010 (256) E.L.T. 10 (Guj.) dea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....djudicating 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 Section 11AC of the Act is imposed the provisions contained in the first and second proviso of 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 before the Court in contradiction of the Circular issued by the Central Excise Department. This Court is Messers Exotic Associates (supra) has directed the adjudicating authority to pass a fresh order giving option to the assessee to pay the duty amount within 30 days by making it explicitly clear in the order....