TMI Blog2018 (7) TMI 2333X X X X Extracts X X X X X X X X Extracts X X X X ..... s of first proviso to Section 11AC of the Act of 1944, which is in breach of the circular of the Central Board of Excise Customs and contrary to the judgment rendered by the Delhi High Court in K.P. Pouches (P) Ltd. [ 2008 (1) TMI 296 - DELHI HIGH COURT ]. In fact, the adjudicating authority ought to have quantified the statutory interest payable by the petitioner and further given option to the petitioner in the original order as mandatorily required by the judgment of the Delhi High Court in K.P. Pouches (P) Ltd. and later explained by the Central Board of Excise Customs. Thus, the order passed by the adjudicating authority non-quantifying statutory interest payable to the petitioner and not giving option to pay reduced penalty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AC (unamended) of the Act of 1944 be set aside and the matter be remanded back to the Adjudicating Authority for passing the order afresh in accordance with the above-stated circular issued by the Central Board of Excise and Customs and the writ petition be allowed to that extent. 3. Mr.Vinay Pandey, learned counsel for the respondents, would submit that the order passed by the Adjudicating Authority is strictly in accordance with law and no interference is called for and the writ petition deserves to be dismissed. 4. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 5. In order to appreciate the point in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. 6. The first proviso to Section 11AC of the Act of 1944 as quoted herein-above was considered by the Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus., Surat-II v. Gopal Fibres Pvt. Ltd. 2010 (256) E.L.T. 10 (Guj.) dealing with similar issue has held that Assessee could not be expected to pay interest in absence of its calculation. It was observed as under:- 10. However, Mr.Oza has made two more submissions in this Tax Appeal. He has emphatically stated that the respondent has not complied with pre-condition for availment of benefit of reduced penalty under proviso to Section 11AC of the Central Excise Act, 1944. As per the first proviso, the duty amount was not paid with interest and even the reduced penalty of 25% is not deposited by the respondent within 30 days from the date of such determination, as required under second proviso to Section 11AC of the Act. So far as sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the duty amount within 30 days by making it explicitly clear in the order itself that if the assessee wants to avail such option he is permitted to do so. In the case on hand since the duty amount has already been paid by the respondentassessee and if the interest and/or reduced penalty of 25% were not paid by the respondent-assessee, the adjudicating authority may send a communication to the respondent-assessee indicating therein that the particular amount of interest and/or 25% of the penalty of the duty amount is not paid by the respondent assessee and hence if the assessee wants to avail the benefit of the reduced penalty of 25%, such amount of interest and /or penalty of 25% should be paid within 30 days from the date of receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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