9911796707
TMI Blog2012 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellant have not been given any option in terms of Section 11AC under 1st proviso for payment of 25% of penalty as decided in the case of Commr. of C. Ex. & Customs, Surat-I Vs. Harish Silk Mills [2010 (2) TMI 494 (HC)] 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cid battery and UPS System and also took credit on S.Tax before 10.09.2004. On scrutiny of records, Department found that lead acid battery and UPS System were used in their office and the Cenvat Credit on S. Tax was not available prior to 10/9/2004. The appellant reversed the credit alongwith interest on being pointed out by the Department. The Department issued a show cause notice invoking the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 5. Ld. A.R. submitted that the appellant have not brought this to the knowledge of the Department that they have availed the credit on the lead acid battery and UPS System used in the office and availment of credit on input service prior to 10/09/2004. The contention is that as per explanation to Sub-section 2(b) of Section 11A, the requirement that the show cause notice should not have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Ld. A.R. that this case is covered by explanation under Sub-Section 2 (b) of Section 11A. Hon ble Supreme Court in the case of Rajasthan Spinning Weaving Mills-2009 (238) ELT 3 (SC) held that Once the demand is confirmed, there is no discretion with the adjudicating authority to vary the penalty under Section 11AC. Therefore, I do not find any reason to interfere with the Lower Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order. In case, the Appellant fail to pay the reduced amount of penalty within 30 (thirty) days of receipt of this order the Appellants would be liable to pay full amount of penalty equal to the amount of duty involved in this case. Commissioner (Appeals) s order is set asicde and Appeal is allowed to that extent. Appeal disposed off as above. (Dictated Pronounced in the open Court) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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