TMI Blog2011 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2003 - - - Dated:- 20-4-2011 - Dr. Mukundakam Sharma and Anil R. Dave, JJ. REPRESENTED BY : S/Shri K. Swami, Ms. Shipra Ghose, B.K. Prasad and B.V. Balaram Das, Advocates, for the Appellant. S/Shri S. Nanda Kumar, Satish Kumar, R. Satish Kumar, Ms. Anjali Chauhan, Ms. Seema Shukla and Rakesh K. Sharma, Advocates, for the Respondent. [Order]. This appeal is directed against the judgment and order dated 3-10-2002 [2003 (161) E.L.T. 1029 (Tri.-Bang.)] passed by CEGAT, South Zonal Bench at Bangalore. The issue that was urged before the Tribunal by the respondent herein was whether in view of the fact that there was a delay of one or two days in making payment of duty with reference to clearance of the goods and in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears as provided in Section 11A of the Central Excise Act, 1944. It was also held that in equal quantity of excisable goods were removed by the assessee without payment of duty. Finally, by exercising the powers under Section 11AC, penalty was also imposed to the extent of equal amount of the duty which is 100% penalty. 3. Being aggrieved by the aforesaid order passed by the Commissioner of Customs and Central Excise, an appeal was filed before the Tribunal. Before the Tribunal, only one issue was raised by the respondent, which was with regard to the quantum of penalty under Section 11AC of the Central Excise Rules. No other issue was raised and, therefore, we are not required to go into any other aspect of the matter except for deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was short paid at the first instance and that too even before the show cause notice was issued. Tribunal upheld the said contention in the said case which was set aside by this Court in the decision of Rajasthan Spinning and Weaving Mills (Supra). Since the submission here is of identical nature, the aforesaid submission is only to be rejected in view of the findings recorded by this Court that once the section is held to be applicable in a case, the authority concerned would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. On consideration of the factual position, we also hold that, in the present case, the Tribunal was not justified in reducing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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