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TMI Blog2013 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules"). The applicant carried the matter in appeal before the Commissioner (Appeals) who vide an order dated 25-2-2008, dismissed the appeal. The applicant succeeded in its appeal before the Tribunal, which, by its order dated 26-8-2008, allowed the appeal on the ground of limitation. 3. Tax Appeal No. 338 of 2009 had been preferred by the respondent challenging the order dated 26-8-2008 [2009 (234) E.L.T. 525 (Tri.)] made by the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal"). The Court after hearing the learned counsel for the respective parties, had formulated the following substantial question of law : "Whether the Tribunal was justified in importing the concept of knowledge in the provisions of Section 11A of the Central Excise Act, 1944 read with sub-section (1) and the proviso thereto?" 4. The Court after considering the record of the case and the submissions advanced by the learned counsel for the respective parties, was of the view that in the facts of the present case, suppression stood admitted by the assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the learned counsel placed reliance upon the decision of a Division Bench of this Court in the case of Commissioner of Central Excise & Customs, Surat-I v. Bhagyoday Silk Industries, 2010 (262) E.L.T. 248 (Guj.) as well as the decision of a Division Bench of this Court in the case of Commissioner of Central Excise & Customs, Daman v. R.A. Shaikh Paper Mills Pvt. Ltd., 2010 (259) E.L.T. 53 (Guj.). 8. The learned counsel next submitted that the applicant has deposited the entire amount with duty and interest as well as 25% of penalty. It was pointed out that the judgment and order in the captioned tax appeal came to be delivered by this court on 22-4-2010 and that the same was received by the applicant after a period of about one month. However, in the month of June, 2010 itself, the applicant deposited the entire amount of duty with interest and 25% of the penalty. Copies of challans evidencing deposit of the amount of duty and interest and 25% of penalty have also been placed on record. It was submitted that under the circumstances, in the light of the principles enunciated by this court in the above referred decisions, the benefit of allowing option of paying 25% penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a decision of the Bombay High Court in the case of VIP Industries Ltd. v. Commissioner of Central Excise, Nashik, 2011 (264) E.L.T. 24 (Bom.), for the proposition that the High Court is a Court of record as envisaged under Article 215 of the Constitution, having inherent power to correct record. The court, in the context of Section 35G of the Act, held that the power of review exists in favour of the High Court even in the absence of express provision in the Act conferring power of review. 11. Vehemently opposing the application, Mr. R.J. Oza, learned Senior Standing Counsel for the respondents invited the attention of the court to the provisions of Section 35G of the Act. It was pointed out that under sub-section (3) thereof, the High Court if it is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (4) thereof provides that the appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. It was pointed out that under sub-section (5) thereof, the High Court is required to decide the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under the said section be twenty-five per cent. of the duty so determined. 16. As can be seen from the facts noted hereinabove, the applicant is seeking the benefit of the proviso to Section 11AC of the Act. In this regard it may be recalled that the Order-in-Original came to be passed on 22-2-2006. Admittedly, at that point of time the benefit of the proviso was not given to the applicant. The applicant in its appeal before the Commissioner (Appeals), did not make any grievance with regard to non-grant of the said benefit, nor did it deposit the amount of duty with interest and 25% of the penalty as envisaged under the said proviso within a period of thirty days from the date of communication of the Order-in-Original. Under the circumstances, the said point was never at issue in the appeal before the Commissioner (Appeals). In the appeal before the Tribunal against the order of the Commissioner (Appeals) also, the said contention does not appear to have been raised and the order of the adjudicating authority as confirmed by the Commissioner (Appeals), appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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