2011 (3) TMI 1649 - HC - Central Excise

Benefit of treatment of value received as cum duty - quantification of duty - reduced penalty of 25% - Held that - question is based purely on facts. Tribunal, as noted, observed that there is no evidence to show that value received by assessee was excluding duty - Further question of reduced penalty was considered by this Court in somewhat similar situation in case of Commissioner of Central Excise and Customs, Surat-II v. Mahalaxmi Industries 2010 (2) TMI 676 - GUJARAT HIGH COURT , where it was held that If the duty amount with interest is not paid in time and even reduced penalty of 25% of the duty amount is not paid in time and option is not given to the respondent assessee, we have taken the view that such option should be given to the assessee and period of 30 days would commence from the date of giving such option - appeal dismissed - decided against appellant.

Summary

Issues:
1. Tribunal's finding on treatment of value received as cum duty.
2. Tribunal's decision on reduced penalty upon payment within 30 days.

Analysis:
1. The High Court addressed the first issue concerning the tribunal's finding on the treatment of value received as cum duty. The Revenue appealed against the tribunal's judgment, primarily focusing on two issues. The first issue revolved around the tribunal's decision that the value received should be treated as cum duty, necessitating a reworking of the duty amount. The tribunal accepted the contention that duty should be recalculated based on the value received, as there was no evidence to suggest that the value excluded duty. The High Court noted that this issue was fact-specific and upheld the tribunal's decision.

2. The second issue involved the tribunal's ruling on the reduced penalty if duty, interest, and penalty were paid within 30 days. The tribunal had not explicitly mentioned the option to reduce the penalty to 25% upon timely payment in its order. Referring to a similar case precedent, the High Court emphasized the importance of providing such an option to the assessee. The Court cited a case where the tribunal had reduced the penalty under Section 11AC to 25% of the duty amount due to early payment before the issuance of a show cause notice. The High Court upheld the tribunal's decision to remand the matter to the original adjudicating authority for reworking the duty liability and quantifying interest, while allowing the option to pay reduced penalty within 30 days.

In conclusion, the High Court dismissed the tax appeal, ruling against the Revenue on both issues. The Court found that the tribunal's decisions were justified based on the specific circumstances of the case and upheld the tribunal's findings regarding the treatment of value received as cum duty and the provision of a reduced penalty option upon timely payment of duty, interest, and penalty.