TMI Blog2014 (11) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Tribunal is justified in reducing the imposition of penalty which was imposed equivalent to that of differential duty. once Section 11AC of the Central Excise Act is applicable, there is no justification in quantifying the amount and the penalty imposed must be equivalent to the differential duty re-determined under Section 11A of the Central Excise Act, 1944. Referring to the decision in the case of Union of India v. Dharmendra Textile Processors reported in [2008 (9) TMI 52 - SUPREME COURT], the Supreme Court pointed out that “though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the authority concerned would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtraneous considerations like the assessee did not gain anyway from the evasion found which are not provided for in the statute? 2. The first respondent/assessee was issued show cause notice dated 15-2-2005 alleging that a revision in the price of the raw materials was not intimated to the Department and adopted lesser value than that declared by them to the department in clearing their goods and therefore, it appears that the respondent has suppressed the facts with an intent to evade payment of correct Central Excise Duty and after thorough investigation of their records by the officers, the facts came to light and therefore, called upon the assessee to explain as to why the extended period of limitation should not be invoked for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter called as the Tribunal ). 5. The Tribunal, after hearing both parties confirmed the factual finding recorded by the Original Authority as well as the First Appellate Authority that there is wilful suppression of material facts by the assessee, which the authorities held that it was with an intention to evade payment of duty. However, with regard to imposition of penalty under Section 11AC of the Central Excise Act, the Tribunal opined that it was on the higher side and reduced the penalty to ₹ 1,00,000/-. Aggrieved by the said order, the Revenue has preferred this appeal, which has been admitted on the substantial questions of law, referred supra. 6. We have heard Mr. P. Mahadevan, learned Senior Central Government Standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is 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. That is what Dharmendra Textile decides. 9. In the light of the above, the order passed by the Tribunal as regards the reduction of penalty imposed under Section 11AC of the Central Excise Act is set aside and the penalty imposed by the Original Authority stands restored. 10. In the result, the Civil Miscellaneous Appeal stands allowed. No costs. - - TaxTMI - TMITax - Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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