TMI Blog2010 (2) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of 25% of the duty amount is not paid in time and option is not given to the respondent assessee, we have taken the view that such option should be given to the assessee and period of 30 days would commence from the date of giving such option - Appeal is dismissed - 335 of 2009 - - - Dated:- 18-2-2010 - MR.JUSTICE K.A.PUJ, MR.JUSTICE RAJESH H.SHUKLA, JJ. MR RJ OZA for Appellant(s) ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) Leave to amend as per the draft amendment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is statutorily obliged to set out in his order the availability of benefit of reduced penalty prescribed under proviso to Section 11AC of the Central Excise Act, 1944 and to give option to such person liable for penalty under Section 11AC of the Central Excise Act, 1944 ? (d) Whether in the facts and circumstances of the case, the Tribunal is justified and has committed substantial error of law in 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 (79) RLT 109 (Del) / 2007 (208) ELT 503 (Delhi) and in case of K.P.Pouches P. Ltd., reported in 2008 (85) RLT (483) (Delhi)/ 2008(228) ELT 31 (Del)? (e) Whether the impugned order made by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by order dated 9.7.2007 dismissed the Appeal of the respondent and confirmed imposition of penalty on the respondent. Therefore, the respondent preferred Appeal before the Tribunal, which is decided by the Tribunal vide order dated 11.6.2008 where under the Tribunal has reduced the penalty imposed upon the respondent from Rs.2,98,908/- to Rs.73,275/-. Mr.Oza has submitted that the respondent has not complied with the preconditions for availment of benefit of reduced penalty under proviso to Section 11AC of the Central Excise Act, 1944 and, therefore, the impugned order of the Tribunal is liable to be set aside. Mr.Oza further submitted that the decision of the Delhi High Court in the case of K. P. Pouches (P) Ltd., reported in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isregard of the law laid down by this Court in Tax Appeal No.140 of 2008 and Special Civil Application No.22931 of 2005 and such other judgments, which obligate upon the Tribunal to record cogent reasons in support of conclusion arrived at by him in passing the final order. In support of this submission Mr.Oza also relied on the following decisions (I) Coats Viyella India Ltd., Vs. Commissioner of Central Excise, 2004 (133) ELT 229 (SC) (ii) TATA Engineering Locomotive Co. Ltd., Vs. Collector of Central Excise, 2006 (203) ELT 360 (SC) (iii) Commissioner of Central Excise Vs. Wimco Ltd., 2007 (217) ELT 3 (SC) (iv) Commissioner of Central Exicse Vs. GTC Industries Ltd., 2008 (228) 505 (SC) (v) Commissioner of Central Excise Vs. Srikumar Age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew in this Appeal. However, Mr.Oza has made two more submissions in this Tax Appeal. He has emphatically stated that the respondent has not complied with pre-condition for availment of benefit of reduced penalty under proviso to Section 11AC of the Central Excise Act, 1944. As per the first proviso, the duty amount was 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent assessee and if the interest and/or reduced penalty of 25% were not paid by the respondent assessee, the adjudicating authority may send a communication to the respondent assessee indicating therein that the particular amount of 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 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. Before parting, we observe that the order passed by the Tribunal cannot be said to be a non-speaking and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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