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TMI Blog2011 (7) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... icated by the respondent to the appellants within 30 days of the passing of the order on the present application. 3. It is the contention of the applicants that the authorities while disposing of the matter did not specifically made offer to permit the appellants to pay 25% of the penalty in terms of the first proviso to Section 11AC. It is their further case that this aspect was ignored by the Tribunal while deciding the matter on 1-7-2011 and hence the present application. 4. Learned Advocate for the appellants placing reliance in the decision in the matter of Exotic Associates v. C.C.E., reported in 2010 (252) E.L.T. 49 (Guj.), K.P. Pouches (P) Ltd. v. Union of India reported in 2008 (228) E.L.T. 31 (Del.), C.C.E. & C., Surat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by such person under this section shall be twenty-five per cent of the duty so determined." 7. The said proviso is followed by three further provisos and followed by explanation clause and the same read as under :- "PROVIDED FURTHER that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : PROVIDED ALSO that where the duty determined to be 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, as reduced or increased, as the case may be, shall be taken into account : PROVIDED AL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and orders payment of interest and penalty, then if the assessee pays such duty amount along with interest payable thereon and 25% of the duty as penalty within thirty days from the receipt of the order communicating the determination of duty liability, certainly, the assessee would be entitled to avail the benefit assured under the such proviso. The benefit assured is restricted to the penalty amount. In case the duty liability along with interest as also 25% of the duty as penalty is paid, then the assessee gets waiver of 75% of the penalty. The benefit under the proviso, therefore, is restricted to 75% of the penalty amount. 9. Plain reading of the said proviso also discloses that there can be hardly any occasion for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d case, the assessee had deposited the entire duty amount well before the issuance of the show cause notice. In the background of the said fact, the Hon'ble High Court held that the authorities erred in denying the benefit of the first proviso to Section 11AC. Apparently, the decision was delivered in the peculiar facts of the case. Even plain reading of the discussion regarding the facts of the case and law applicable thereto in the said decision would reveal that there was no interpretation as such of the first proviso to Section 11AC. 12. Regarding the remaining decisions relied upon, it is to be noted that the first decision in that regard was in the matter of J.R. Fabrics (P) Ltd. case, therein the Hon'ble Punjab & Haryana High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions imposed under the 1st and 2nd proviso to Section 11AC. The decision nowhere holds that it is obligatory for the adjudicating authority to make a specific offer in that regard as such. 16. In Exotic Associates case, the Gujarat High Court after referring to the decision of the Punjab & Haryana High Court in J.R. Fabrics case held thus :- "Considering the above judgment of the Delhi High Court as well as Punjab & Haryana High Court and further considering the impugned order of the Tribunal, we are of the view that the matter requires to be considered a fresh in light of the above decisions of the Delhi High Court as well as Punjab & Haryana High Court. It is an admitted position that the assessee was not given any option a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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