TMI Blog2010 (1) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty so determined was not paid by the party within the period of thirty days which is the pre requirement to avail such benefit as per the second proviso to Section 11 AC? This is an Appeal by the Revenue filed under Section 35 G of the Central Excise Act, 1944 (for brevity 'the Act') challenging Order dated 28.10.2008, passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal'). Brief facts of the case which are necessary for the disposal of the controversy raised may first be noticed: The Respondent-Manufacturer i.e. M/s Shipley Hosiery Industries is engaged in the manufacture of Sweaters falling under Chapter Heading 61 of the Central Excise Tariff Act, 1985. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) vide its Order dated 09.11.2006 dismissed the Appeal of the Respondent-Assessee and upheld the Order of Adjudicating Authority. The Respondent-Assessee filed Appeal before the Tribunal assailing the Order of Commissioner (Appeals). The learned Tribunal vide its Final Order dated 28.10.2008 reduced the amount of penalty from 100% to 25% relying upon the decision of the Delhi High Court in the case of C C E VS. Malbro Appliances (P) Ltd., 2007 (208) ELT 503 (Delhi). The present Appeal is filed against the said decision of the Tribunal. Mr. HPS Ghuman, Ld. Counsel for the Revenue has vehemently argued that the provision of Section 11AC of the Act has now been interpreted by Hon'ble Supreme Court in the case of Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depositing the amount of penalty equivalent to 25% of the total duty. He has maintained that the adjudicating authority as well as the first appellate authority had illegally insisted on imposition of penalty equivalent to the amount of duty which has been patently contrary to 1st proviso to Section 11 AC of the Act. The Ld. Counsel supported his argument with the judgement of this Hon'ble Court in the case of CCE vs. J.R. Fabrics (P) Ltd., CEA No.05/2009 The questions of law raised by the appellant are identical as raised in CEA No.05/2009, J .R. Fabrics (P) Ltd . (supra). A Division Bench of this Court in CEA No.05/2009 vide its Order dated 03.04.2009 agreeing with the view taken by Delhi High Court in Malbro Appliances (P) Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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