TMI Blog2017 (10) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to National Calamity Contingent Duty (NCCD); Education Cess, and Secondary and Higher Education Cess which was neither created by the Central Excise Act, 1944, nor a subject matter of Ministry of Finance - penalty sustained - appeal dismissed - decided against appellant. - Excise Appeal No.51874 of 2015 - A/56508/2017-EX[DB] - Dated:- 12-9-2017 - Mr. (Dr.) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member (Technical) Shri S Ganesh, Sr. Advocate and Shri Srinivas Kotni, Advocate for the Appellants Shri H C Saini, AR for the Respondent ORDER Per: (Dr.) Satish Chandra Present appeal is filed against Order-in-Original No.15/2015 dated 23.2.2015. The period involved is April, 2013 to Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackaging Ltd. [2008 (223) ELT 360 (P H) 4. But fact remains that in the above mentioned cases, the issue was regarding the payment of duty in cash but in the instant case, issue is not about the duty which was exempted. The issue is pertaining to National Calamity Contingent Duty (NCCD); Education Cess and Secondary Higher Education Cess which are neither created by the Ministry of Finance nor by the Central Excise Act, 1944. So, the above ratio is distinguishable. 5. On the other hand, Shri H C Saini, submits that in the earlier order, the impugned order was upheld along with the reasons mentioned therein, so the penalty was also upheld. He submits that the duty was deposited under protest in the impugned order. 6. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Bombay High Court in the case of CCE Mumbai Vs. Hindustan Petroleum Corporation Ltd. [2017 (347) ELT 229 (Bom)] observed that in case of non-payment or short-payment of duty, penalty gets automatically attracted and authority had no discretion. The Hon ble Bombay High Court has discussed the ratio laid down by Hon ble Supreme Court in the case of Union of India Vs. Dharamendra Textile Processors [2008 (231) ELT 3(SC)]. 11. Further, in the case of Principal Commissioner of Service Tax, Delhi II Vs. Tops Security Ltd. [2016 (41) STR 612 (Del)], it was observed that the benefit of reduced penalty available only when such reduced penalty along with due tax and interest paid within 30 days of date of communication order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Officer is paid within thirty days then penalty equal to the amount of duty is not required to be paid and the amount contemplated in lieu of the penalty is 25% of the total amount of Excise duty determined by the officer concerned. 14. So long as there is no order and its communication to the assessee/noticee quantifying the duty liability and interest under Section 11AB of the Act, the period of 30 days under the first proviso to Section 11AC does not start running. It, therefore, follows that wherever the assessee has received demand quantifying the amount of duty and the interest payable thereon, he is bound to pay it within 30 days from the receipt thereof, if he wants to take advantage of the first proviso. If he does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Union of India Vs. Dharmendra Textile Processors [2008 (231) ELT 3 (SC)] has observed as under: 12. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression assessee shall be liable proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. liability to pay duty . It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable. Most of cases relied upon by learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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