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TMI Blog2010 (2) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. JUDGMENT Leave to amend as per the draft amendment. 2. The Commissioner of Central Excise Customs, Surat-I has filed this tax Appeal under Section 35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law for determination and consideration of this Court; (1) Whether in the facts and circumstances of the case, the Tribunal is justified and has committed substantial error of law in reducing the mandatory penalty imposed under Section 11AC of the Central Excise Act, 1944 to the extent of 25% of the amount of duty on the ground that the entire duty amount was deposited before issuance of show cause notice without satisfaction of first and second proviso to Section 11AC of the said Act? (2) Whether, in the facts and circumstances of the case, the Tribunal is justified and has committed substantial error of law in placing reliance on the decision rendered by the Hon ble Delhi High Court in the case of CCE v. Malbro Appliances, reported in 2007 (79) RLT 109 (Del.) = 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.)? 3. Heard Mr. R.J. Oza, learned Standing Counsel appearing for the Revenue and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate rate from 1st of the month succeeding the month of which the duty ought to have been paid till the payment of duty on Rs. 1,35,402/- under Section 11AB of the Central Excise Act, 1944. The adjudicating authority has also imposed penalty of Rs.1,35,402/- under 11AC of the Central Excise Act, 1944 with option that the amount of penalty would be reduced to 25% of Rs. 1,35,402/-, if the duty amount and interest thereon and the penalty are all paid within 30 days from the date of communication this order. The respondent preferred appeal and the Appellate Commissioner by his order dated 26-12-2007 dismissed the appeal of the respondent. Thereafter, the respondent filed appeal before the Tribunal. 6. Mr. Oza has submitted that the respondent has not complied with the preconditions for availment of benefit of reduced penalty under proviso to Section 11AC of the Central Excise Act, 1944 and, therefore, the impugned order of the Tribunal is liable to be set aside. 7. Mr. Oza further submitted that the decision of the Delhi High Court in the case of K.P. Pouches (P) Ltd., reported in 2008 (228) E.L.T. 31 (Del.), cannot be applied to the case of the respondent inasmuch as in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Collector of Central Excise, 1983 (12) E.L.T. 744 (Guj.). 9. We have considered the submissions made by Mr. Oza and also perused very minutely the order passed by the authorities below. As a matter of fact, all these questions reframed by Mr. Oza are different facets of the main question as to whether the Tribunal is justified in reducing the penalty to 25% of the duty leviable on the respondent. All these aspects of the main question are already considered by this Court in its order dated 18-11-2009 in the case of Messers Exotic Associates v. Commissioner of Central Excise (Tax Appeal No. 572 of 2007 with Tax Appeal No. 869 of 2007 [2010 (252) E.L.T. 49 (Guj.)] and Tax Appeal No. 1942 of 2008 in the case of Commissioner of Central Exicse Customs v. Rama Synsilk Mills P. Ltd., decided on 21-1-2010 [2010 (254) E.L.T. 277 (Guj.)]. This Court after considering the decision of Commissioner of Central Excise v. Malbro Appliances, 2007 (79) RLT 109 (Delhi) = 2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.), Union of India v. Dharamendra Textiles, 2008 (231) E.L.T. 3 (S.C.), Union of India v. Rajasthan Spinning Weaving Mills, 2009 (238) E.L.T. 3 (S.C.), K.P. Pouches (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving option to the assessee to pay the duty amount within 30 days by making it explicitly clear in the order itself that 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 respondent-assessee 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 of such communication, failing which they would be liable to pay penalty under Section 11AC equivalent to the amount of duty. 11. Before parting, we observe that the order passed by the Tribunal cannot be said to be a non-speaking and non-reasoned order. The authorities cited by Mr. Oza in support of his submission that a non-speaking order is passed by the Tribunal and hence it deserves to be dismissed, were duly cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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