TMI Blog2007 (7) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 1,37,560/- was confirmed on the ground that the respondent had suppressed the material facts from the knowledge of the Department regarding manufacture and clearance of the branded goods, penalty of amount equal to the duty determined was rightly imposed by the adjudicating authority. 3. The authorities below held that, the respondent was using the brand name of others and, therefore, the benefit of exemption under Notification dated 1-3-2002 was not admissible to the respondent. It was held that, the respondent had withheld the information from the Department and suppressed the fact of having used the brand name of other persons with intent to evade the payment of the Central Excise Duty payable thereon. This finding has been based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the amended provisions of Section 11AC. Under the first proviso to the amended provisions of Section 11AC, it is only when the duty is paid, along with interest and penalty as determined, within thirty days, that the person concern will be entitled to the benefit of paying penalty at the rate of 25% of the duty determined. In other words, penalty equal to the duty determined has to be ordered and only if after making of such order the duty determined is paid along with interest and penalty at 25% of the duty determined within thirty days, that the relaxation from the stringent penalty equal to the duty determined as ordered can be availed. The benefit of reduced penalty of 25% of the duty determined, in the shape of a reduced liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 11AC leave no scope for contending that Section 11AC provides liability to pay a penalty equal to the duty determined only as a maximum penalty that could be levied, giving a discretion to impose any lesser amount. We, therefore, hold that since levy of penalty is warranted on the respondents, this Tribunal is bound to levy penalty equal to the amount of duty, as directed by the Hon ble High Court of Punjab and Haryana in its order dated 21-7-2006. 6. The reliance placed by the Commissioner (Appeals) on the decision of the Hon ble Supreme Court in State of Madhya Pradesh v. BHEL (supra), is wholly misconceived and the ratio of the said decision cannot assist the respondent in the interpretation of the penalty provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In paragraph 12 of the judgment, the Hon ble Supreme Court held as follows : 12. It is not necessary for us to decide whether the provision for levy of penalty equal to ten times the amount of entry tax would be confiscatory and, therefore, ultra vires since Mr. Sanghi. in fairness, submitted that the State treats it as the maximum limit and not fixed amount of penalty leaving no discretion for imposition of lesser penalty. This stand of the State itself concedes that the assessing authorities are not bound to levy fixed penalty equal to ten times the amount of entry tax whenever the provisions of Section 7(5) are attracted. Depending upon the facts of each case the assessing authority has to decide as to what would be the reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
