TMI Blog2010 (2) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... ent assessee, such option should be given to assessee and period of 30 days would commence from the date of giving such option. - 293 of 2009 - - - Dated:- 17-2-2010 - K.A. Puj and Rajesh H. Shukla, JJ. Shri R.J. Oza, for the Appellant. None, for the Respondent. [Judgment per : K.A. Puj, J. (Oral)]. - Leave to amend as per the draft amendment. 2. The Commissioner of Central Excise Customs, Surat-I has filed this tax Appeal under Section 35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law for determination and consideration of this Court; "Whether in the facts and circumstances of the case, the Tribunal has committed a substantial error of law in reducing the mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing reliance on the decision rendered by the Hon'ble High Court in the case of CCE v. Malbro Appliances P. Ltd., reported in 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.) = 2007 (79) RLT 109 (Del.) and in case of K.P. Pouches P. Ltd. reported in 2008 (228) E.L.T. 31 (Del.) = 2008 (85) RLT (483) (Delhi)? (e) Whether the impugned order made by the Tribunal can be said to be an order in accordance with law? (f) Whether or not in the facts and circumstances of the case the Tribunal has committed substantial error of law in reducing penalty to 25% of the duty amount on the respondent ? 5. Mr. Oza submitted that the Tribunal has not recorded any reasons setting out facts of the case of the respondent and has mechanically p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of K.P. Pouches (P) Ltd. reported in 2008 (228) E.L.T. 31 (Del.), cannot be applied to the case of the respondent inasmuch as in the case of K.P. Pouches (P) Ltd. (supra) the adjudicating authority has not ordered recovery of interest under Section 11AB of the Central Excise Act, 1944 because in the said case the assessee had deposited total amount of duty payable under Section 11A(2) of the Act on the date of detection of evasion of duty itself. He has further submitted that the decision in the case of Malbro Appliances P. Ltd. reported in 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.), also cannot be applied because the facts of the case on hand are not identical to the facts of the case of the assessee in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imco Ltd., 2007 (217) E.L.T. 3 (S.C.) (iv) Commissioner of Central Excise v. GTC Industries Ltd, 2008 (228) 505 (S.C.) = 2009 (16) S.T.R. 516 (S.C.), (v) Commissioner of Central Excise v. Srikumar Agencies, 2008 (232) E.L.T. 577 (S.C.) = 2009 (13) S.T.R. 3 (S.C.), (vi) Stead Fast Paper Mills v. Dr. Kohli, Former Collector of Central Excise, 1983 (12) E.L.T. 744 (Guj.). 9. We have considered the submissions made by Mr. Oza and also perused very minutely the order passed by the authorities below. As a matter of fact, all these questions reframed by Mr. Oza are different facets of the main question as to whether the Tribunal is justified in reducing the penalty to 25% of the duty leviable on the respondent. All these aspects of the main ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not deposited by the respondent within 30 days from the date of such determination, as required under second proviso to Section 11AC of the Act. So far as second issue is concerned, Mr. Oza submitted that the adjudicating authority is not under any statutory obligation to set out in its order the availability of benefit of reduced penalty prescribed under proviso to Section 11AC of the Central Excise Act and to give an option to such person liable for penalty under that Section. Both these issues were dealt with by this Court in Tax Appeal No. 572 of 2007 with tax Appeal No. 869 of 2007 decided on 18-11-2009 [2010 (252) E.L.T. 49 (Guj.)]. It is also important to note that the adjudicating authority has not calculated the interest neither in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wants to avail the benefit of the reduced penalty of 25%, such amount of interest and/or penalty of 25% should be paid within 30 days from the date of receipt of such communication, failing which they would be liable to pay penalty under Section 11AC equivalent to the amount of duty. 11. Before parting, we observe that the order passed by the Tribunal cannot be said to be a non-speaking and non-reasoned order. The authorities cited by Mr. Oza in support of his submission that a non-speaking order is passed by the Tribunal and hence it deserves to be dismissed, were duly considered by us and we are of the view that they are not applicable to the facts of the present case. The Tribunal while dismissing the Departmental Appeal observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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