TMI Blog2009 (1) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ri N.J. Gheewala, Consultant, for the Appellant. Shri S.R. Prasad, SDR, for the Respondent. [Order].- This is a case of illicit removal of raw materials procured without payment of duty by the appellants 100% EOU. 2. Heard both the sides. Ld. Consultant on behalf of the appellants submits that there is no evidence of clandestine removal and the duty demanded has already been paid before issue of show cause notice. Therefore the penalty u/s 11AC may be reduced to 25%. On the other hand ld. DR submits that it is not only the shortage found but there is a clear admission by the receiver of the goods that he has received the same without payment of duty. He also submits that in view of the Hon'ble Supreme Court decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Delhi in M/s. K.P. Pouches Ltd. [2008 (228) E.L.T. 13 (Del.) = 2008 (85) RLT 483]. In view of the different decisions during different periods and also in view of the decision of the Larger Bench of the Tribunal and also in view of the fact that the matter of mandatory penalty was pending before the Hon'ble Supreme Court for some time, the appellants cannot be found fault with their approach i.e. wait for the decision finally so that they know the exact situation as far as mandatory penalty is concerned. They cannot also be found fault with if they hope that the penalty could be 25% wherever duties have been paid before issue of show cause notice or it can be 'nil' rather than being 100%. Therefore, it is quite possible that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under Section 11AC to 25% if he makes the payment within 30 days from the date of communication of the order. Such a conclusion is also supported by proviso to Section 11AC which provides that where the duty determined and payable is reduced or increased by the Commissioner (Appeals), the appellate Tribunal or, as the case may be, the Court, then for the purposes of this section, the duty is reduced or increased as the case may be shall be taken into account.) In view of the above discussion, if the appellant makes the payment of penalty within 30 days of the communication of this order, it would be sufficient for reduction of penalty to 25% of the duty amount subject to the condition that full duty amount, interest are also deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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