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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 ..... stice R.M.S. Khandeparkar, Shri Rakesh Kumar, REPRESENTED BY : Shri R. Krishnan, Advocate, for the Appellant. Shri R.K. Verma, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned Advocate for the applicants and the DR for the respondent. 2. By the present application the appellants is praying for permission to exercise the option to pay 25% of the duty as penalty along with interest as calculated and communicated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11AC and ignorance of law cannot be the basis to defeat the valid order passed by the adjudicating authority. 6. The first proviso to Section 11AC read thus :- PROVIDED that where such duty as determined under sub-section (2) of section 11A, and the interest payable thereon under section 11AB is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from such person . 8. Plain reading of the first proviso would reveal that the same is attracted only in cases where the duty amount along with interest determined by the assessing authority is paid within a period of 30 days from the date of communication of the order determining such duty along with 25% of the duty as penalty. In other words, once the assessing authority determines the duty liability of the assessee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of penalty, the same has to be paid within thirty days from the date of communication of order regarding the duty liability. Obviously, the period of thirty days starts running from the date of communication of the order determining the duty amount. 11. As far as the decisions which are sought to be relied upon are concerned, first such decision is in the matter of K.P. Pouches (P) Ltd. case. In the said 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. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of 25% imposed as penalty is not because any discretion is vested in the Court or the Tribunal but because of 1st and 2nd provisos incorporated by the Parliament w.e.f. 12-5-2000 . 15. In other words, the High Court clearly held that it is under the statutory provision that the assessee is entitled to avail the benefit of waiver of 75% of the penalty in case the assessee complies with the 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, none of the decisions sought to be relied upon lays down the law as such in relation to 1st proviso to Section 11AC, as sought to be canvassed on behalf of the appellants. 21. Added to above, as already pointed out, as the facts of the case clearly disclose that the appellants had not paid the entire duty even within the period of 30 days after determination. Being so, the basic and elementary condition to claim the benefit under the said proviso was not complied with by the appellants and, therefore, there is no question of granting any benefit under the said proviso to the appellants. 22. For the reasons stated above, therefore, we do not find any case for grant of relief as prayed for. Hence, the application is dismissed. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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