TMI Blog2009 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... er, as the issue involved in all of them is the quantum of penalty imposable under Section 11AC of CEA, 1944. All the appeals stand remanded by Hon ble High Court of Gujarat, with directions to decide the issue afresh in the light of the Hon ble High Court (sic) decision in case of UOI v. M/s. Dharamendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) = 2008 (89) RLT 103 (S.C.-LB) and in terms of proviso to Section 11AC. 2. As the facts in each and every case are different, they are being narrated separately, in short, as under: (i) Appeal No. E/68/2004 : Being aggrieved with the order passed by Commissioner (Appeals), vide which he has set aside the penalty imposed under Section 11AC of the Act, by following the Larger Bench decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order was challenged before Tribunal, who upheld the duty confirmation, but reduced the penalty from Rs. 79,278/- to Rs. 50,000/-. (v) Appeal No. E/35/2006 : Duty of Rs. 2,50,481/- was confirmed against the assessee along with penalty of equal amount by original adjudicating authority. The said penalty was reduced by Commissioner (Appeals) by taking note of the fact that the entire duty stand paid before issuance of show cause notice and accordingly reduced the same to Rs. l.5 lakhs. On an appeal filed by the Revenue, Tribunal upheld the order of the Commissioner (Appeals) and rejected the appeal filed by the Revenue. (vi) Appeal Nos. E/158, 159/2006 : The appeal was filed by the Revenue against order of Commissioner (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court judgment. (ix) Appeal No. E/253/2006 : The duty confirmation is not in dispute in the present appeal. As Commissioner (Appeals) has reduced the penalty from Rs. 1,38,377/- to Rs. 50,000/- on the ground that the duty was deposited before issuance of show cause notice, Revenue filed the appeal before Tribunal. The said appeal of the Revenue was rejected by taking note of the decision of Hon ble High Court of Delhi in case of CCE v. Malbro Appliances - 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.) = 2007 (79) RLT 109 (Delhi) and by observing that as penalty amount of Rs. 50,000/- was more than 25% of the duty amount, there is no reason to enhance the same. (x) Appeal Nos. E/369, 2963/2006 : Duty of Rs. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty to Rs. 1 lakh by taking note of the fact that the entire duty stand paid by the assessee. Revenue challenged the said order before Tribunal for enhancement of penalty to the extent of 100% of duty amount. Tribunal, by taking note of the decision of Hon ble High Court of Delhi in case of CCE v. Malbro Appliances, 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.) = 2007 (79) R.L.T. 109 (Delhi), reduced the penalty to 25% of the duty determined. (xiii) Appeal No. E/756/2007 : Commissioner (Appeals), while confirming the demand of duty on the allegations of clandestine removal, set aside the penalty imposed upon the assessee. On an appeal filed by the Revenue, penalty was enhanced to 25% of duty amount, in the light of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re issuance of show cause notice. On an appeal filed by the Revenue for enhancement of penalty, the same was rejected. (xvii) Appeal Nos. E/265-266/2008 : Duty confirmation against the assessee were upheld by Tribunal, but penalties were reduced to 25% of the duty amount in terms of the decision of Hon ble High Court of Delhi in case of CCE v. Malbro Appliances, 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.) = 2007 (79) RLT 109 (Delhi) and in case of M/s. K.P. Pouches (P) Ltd. v. UOI - 2008 (228) E.L.T. 31 (Del.) = 2008 (85) RLT 483 (Del.). 3. I find that the law stands declared by the Hon ble Supreme Court in the above referred judgment in the case of M/s. Dharmendra Textile Processors laying down that where the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC of the Act, and no option to pay the dues and penalty of 25% within 30 days was given to the assessee the fault lies with the authorities and not with the assessee. As such the Hon ble Delhi High Court s decision in the case of Malbro Appliances Pvt. Ltd. reported in 2007 (208) E.L.T. 503 (Tri.-Del.) and K.P. Pouches Pvt. Ltd. judgment, reported in 2008 (228) E.L.T. 31 Delhi was concurred with. 6. In terms of above judgment of Hon ble High Court of Punjab Haryana, the orders not giving such an option to the assessees are illegal and have to be set aside. If that be so, the matters need to be remanded for adjudging penal liabilities in terms of Apex Court s judgment in the case of Dharmendra Textiles, along with extending option in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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