Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2015 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (10) TMI 374 - HC - Central ExciseChallenge to the order of Settlement Commission - in so far as it denied the benefit of proviso to Section 11-AC - reduction of penalty - further prayed for a writ of mandamus commanding the respondents to refund the excess amount of 75% deposited towards penalty. - Clandestine removal - Pan Masala, commonly known as Gutka - Held that:- the adjudicating order requires the quantification of the penalty to be made in terms of the first and second proviso of Section 11AC of the Act so that an incentive is given to the assessee to pay the duty and interest within the stipulated period in order to avail payment of duty at reduced rate of 25%, failing which, the total amount of penalty becomes payable. This option was not given in the instant case by the Settlement Commission and, therefore, to that extent the order of the Settlement Commission imposing penalty is in violation of the first proviso to Section 11AC of the Act. The Commission is required to pass orders in consonance with the provisions of the Act and cannot settle the case "dehors" the provisions of the Act. The Commission has the powers to waive the penalty, but, if it does not do so and imposes penalty, it can only do so in consonance with the provisions of the Act. The Commission cannot pass an order of penalty which over rides the provision of Section 11AC of the Act. The order of the Commission stands modified to the extent that, in the event, the petitioners pays the duty and interest determined within the stipulated period as provided under the first and second proviso to Section 11AC of the Act and the petitioners also pays 25% of the penalty so determined within the stipulated period as provided in the second proviso, in which case the petitioners would be entitled for the refund of the excess amount. - Decided in favor of assessee.
|