TMI Blog2017 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... C of the Act is imposed the provisions contained in 1 and 2 proviso to Section 11AC should be mandatorily mentioned in the Order-in-Original itself by the adjudicating authority - as per the aforesaid board circular, the adjudicating authority must have mentioned in the Order-in-Original regarding the option of reduced penalty provided under Section 11AC - the appellant deserve an opportunity for availing option of the reduced penalty. As regard the penalties, the Managing Director was not looking after day to day maintenance of the excise records. Moreover he has not disputed the liability and admittedly paid substantial amount of duty - Regarding the penalty on the employee Shri. Dilip Oak, I found that he is a small time employee of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd penalty of ₹ 1 lakh each on Shri. Dilip Oak and Mrs. Anita Thakur(ex-employees of M/s. Noble Drugs Ltd). Out of the total duty as of now the appellant have paid an amount of ₹ 21,57,506/- before adjudication of the show cause notice, ₹ 5 lakhs was further paid as per the stay order of this Tribunal. Being aggrieved by the Order-in-Original dated 3-7-2007 appellant filed this appeal only for waiver of penalty under Section 11AC, interest under Section 11AB and personal penalties imposed under Rule 26 of Central Excise Rules, 2002. The appellant have admitted duty liability, hence the no appeal with regard to the confirmation of duty demand. 2. Shri. T.C. Nair, Ld. Counsel for the appellant submits that appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed on the Managing Director of the company but he was not looking after day to day records maintenance of excise therefore penalty should not have been imposed. As regard the penalties on the employees, he submits penalty on Ms. Anita Thakur has expired therefore penalty needs to be waived. As regard other employee namely Shri. Dilip Oak, penalty of ₹ 1 Lakh was imposed, being small time employee and thereafter he left job also, he was not beneficiary from short payment of duty, therefore penalty may be waived. 3. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that for reduced penalty there is a statutory provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has passed summary order and no detailed findings was given therefore the same is not binding precedence. On the contrary Hon ble Supreme Court by detailed order in case of R.A. Shaikh Paper Mills Pvt Ltd(supra) found no infirmity in the order of the Hon ble High Court allowing benefit of reduced of penalty 25%. I also observed that the Central Board of Excise and Customs vide Circular dated 22-5-2008 by which following direction was given to the field formation. F. No.208/07/2008-CX-6 Government of India Ministry of Finance Department of Revenue Central Board of Excise Customs *** New Delhi dated the May 22, 2008 To The Chief Commissioner of Central Excise (All) The Chief Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eries of the disputed amount. It is an incentive given to the assessee that if he pays the duty amount along with interest, the penalty is reduced to 25% of the duty. This provision is beneficial to the department as well as the assessee as rightly pointed out by Delhi High Court and therefore, the assessee should be made aware of the option available to him. 3. In view of the points as discussed above, Board has decided that in all the cases, wherein penalty under section 11AC of the Act is imposed, the provisions contained in first and second proviso to section 11AC should be mandatorily mentioned in the Order-in-Original itself by the adjudicating authority. 4. The field formation may be suitably informed. In view of point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty was imposed on the appellant company I therefore set aside the penalty imposed on shri. D.J. Dhamne, Managing Director and Shri. Dilip Oak, ex-employee of the company. As regard the Appeal of Ms. Anita Thakur who was ex-employee of the appellant firm, as submitted by the Ld. Counsel that she has expired therefore appeal stand abated. As result: (a) Appeal No. E/1326/07 of Nobel Drugs Ltd remanded to the Original Adjudicating authority for passing a fresh order giving an option of reduced penalty of ₹ 25%, in terms of Second proviso to Section 11AC. (b) Appeal No. E/1327/07 of Shri. D.J. Dhamne, Managing Director and Appeal No. E/1328/07 of Shri. Dilip Oak(Ex-Employee) are allowed. (c) Appeal No. E/1329/07 of Mrs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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