TMI Blog2010 (2) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 - - - Dated:- 17-2-2010 - K.A. Puj and Rajesh H. Shukla, JJ. REPRESENTED BY : Shri R.J. Oza, for the Appellant. [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 mandatory penalty imposed on the respondent assessee under Section 11AC of the Central Excise Act, 1944 to the extent of 25% despite having confirmed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 503 (Delhi) = 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 passed order extending benefit of reduced penalty on the respondent. He has further submitted that the team of Central Excise Officers had carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that the decision of the Delhi High 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 Malbbro 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 iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (iii) Commissioner of Central Excise v. Wimco Ltd., 2007 (217) E.L.T. 3 (S.C.), (iv) Commissioner of Central Excise v. GTC Industries Ltd., 2008 (228) E.L.T. 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) Steadfast Paper Mills v. 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not paid with interest and even the reduced penalty of 25% is 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. It is also important to note that the adjudicating authority has not ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication to respondent-assessee indicating therein that a particular amount of duty demanded alongwith interest and/or 25% of the penalty of the duty amount is not paid by the respondent assessee and hence if the assessee wants to avail the benefit of reduced penalty of 25% such amount of duty not paid so far alongwith 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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