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TMI Blog2010 (3) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... o 25% as the interest and penalty had not been paid within the prescribed period - appeal is dismissed - 1822 of 2008 - - - Dated:- 4-3-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY : Shri Gaurang H. Bhatt, for the Appellant. [Judgment per : H.N. Devani, J. (Oral)]. - Appellant-Revenue has proposed the following question stated to arise out of the impugned order dated 17th January, 2008 made by the Customs Excise and Service Tax Appellate Tribunal (the Tribunal) :- "Whether in the facts and circumstances of the present case, the Tribunal is justified and has committed a substantial error of law in reducing the mandatory penalty imposed under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,96,097/- (Rupees Four Lakhs Ninety Six Thousand Ninety Seven only) on the unit under provisions of Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944, however, penalty is reduced 25%, if the interest and penalty is paid within 30 days from the date of receipt of this order. (iv) I impose penalty of Rs. 1,00,000/- (Rupees One Lakh only) on Shri Jayesh Rameshchandra Gandhi, Partner of the unit under Rule 26 of Central Excise Rules, 2002. (v) I also impose the penalty of Rs. 10,000/- (Rupees Ten Thousand only) on four merchant manufacturers viz. (i) M/s. Jayesh Silk Mills, Adhinath market, ground floor, Ring road, Surat, (ii) M/s. Shree Hareram Textile, 6/1871, Bali share, Mahidarpura, Surat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at the threshold merely on deposit of the amount after having been caught and before the issue of show-cause notice. Reliance was also placed upon the decision of the Apex Court in Union of India v. Rajasthan Spinning and Weaving Mills, 2009 (238) E.L.T. 3 for the proposition that the application of Section 11AC would depend upon the existence or otherwise of the conditions expressed in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. It was submitted that the Tribunal while reducing the penalty to 25% of the duty amount instead of the mandatory penalty equivalent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty as is apparent from the order of the adjudicating authority. Section 11AC of the Act itself provides for payment of 25% of the penalty in case the duty amount alongwith interest and penalty is deposited within 30 days from the date of communication of the order. In the facts of the present case undisputedly, the entire amount of duty had been deposited prior to the issuance of the show-cause notice. Insofar as payment of interest and penalty as required under Section 11AC of the Act is concerned, no factual foundation has been laid by the appellant before the Tribunal to point out that such amount had not been deposited as required with the provisions of Section 11AC. In absence of any factual foundation having been laid, it would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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