TMI Blog2011 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The Adjudicating Authority has not given such option. - Since the amount of duty was already paid even before issuance of show cause notice, we find that direction to deposit 25% of the penalty amount in terms of the second proviso to Section 78 is fair, reasonable and meets the ends of justice. - STA No.13 of 2011 (O&M) - - - Dated:- 21-11-2011 - Shri Hemant Gupta and Shri G S Sandhawalia, JJ Represented by: Mr. Sukhdev Sharma, Advocate for Appellant Judgement Per: Hemant Gupta: The Revenue is in appeal under Section 35(G) of the Central Excise Act, 1944 against the order dated 28.02.2011 (Annexure A-4) passed by the Customs Excise Service Tax Appellate Tribunal, New Delhi (for short the Tribunal ) in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals) set aside the order of imposing penalties. However, in Revenue s appeal, the learned Tribunal vide order dated 01.02.2011 gave an option to the assessee to deposit 25% of the penalty of the service tax demand in terms of second proviso to Section 78 of the Act relying upon two judgments of this Court in CCE, Rohtak Vs. J.R. Fabrics 2009 (238) ELT 209 High Court P H-CX and CCE, Chandigarh Vs. Bajaj Travels (Appeal No.177 of 2010 decided on 21.12.2010) High Court P H-Service Tax). Learned counsel for the appellant has vehemently argued that the benefit of reduced penalty can be availed by the assessee, if he deposits the amount of penalty within 30 days of the order, but the Authorities under the Act are not compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. However, the benefit of doubt in this regard must go to the assessee considering its bona fides, which are obvious from the fact that the assessee debited the duty amount on the date of the search, well before a show cause notice was issued to it. Under these circumstances, we can only infer that if the correct penalty had been imposed upon the assessee, he would have paid it within the time prescribed. In J.R.Fabrics case (supra), again the assessee deposited the amount of duty before the show cause notice was issued. Similar is the view taken by another Division Bench of this Court. We are in respectful agreement with the view taken in the aforesaid judgments. An assessee is required to be informed to avail the benefit of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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