TMI Blog2010 (10) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent though served. This appeal was admitted on the following substantial questions of law vide order dated 9-5-2006 :- (i) Whether the amount of penalty leviable under Section 11AC of the Central Excise Act, 1944 can be reduced even in cases where evasion of duty is established. (ii) If answer to Question No. 1(i) is in the affirmative, whether the authority reducing the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given. 27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff s case (supra) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch for disposal . 3. We may also point out at this stage that this judgment came up for discussion before the Supreme Court in Union of India v. Rajasthan Spinning Weaving Mills, 2009 (238) E.L.T. 3 (S.C.) after taking note of the judgment in Dharamendra Textile (supra) specifically rejected the contention of the department to the effect that once it was found that there was a case of non-pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to this law laid down by the Supreme Court in the aforesaid two judgments, we answer the question in the negative i.e. the penalty imposed under Section 11AC of the Act cannot be less than the amount determined to be payable under Section 11A(2) of the Central Excise Act, 1944 as Section 11AC laid down in such circumstances 100% penalty is to be imposed. There would not be any discret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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