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TMI Blog2010 (2) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... at the particular amount of interest and/or 25% of the penalty of the duty amount is not paid by the respondent-assessee and hence if the assessee wants to avail the benefit of the reduced penalty of 25%, such amount of interest and/or penalty of 25% should be paid within 30 days from the date of receipt of such communication, failing which they would be liable to pay penalty under Section 11AC equivalent to the amount of duty. Since the order passed by the Tribunal is in accordance with the view taken by this Court, there is no question of considering the Circular issued by the Central Board of Indirect Taxes on which reliance was placed by Mr. Ravani. In the above view of the matter, we do not see any substance in this tax appeal and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged this order before the Commissioner (Appeals) who vide his order dated 15-12-2003 upheld the order-in-original of the adjudicating authority and dismissed the said appeal. Being further aggrieved by the said order, the Department preferred Second Appeal before the Tribunal and the Tribunal vide its order dated 14-9-2005 dismissed the Appeal by holding that no merits are found in the Revenue s Appeal. 4. Being further aggrieved by the said order of the Tribunal, the Revenue filed Tax Appeal No. 524 of 2006 before this Court for enhancement of penalty equal to duty evaded under Section 11AC of the Central Excise Act. This Court vide its order dated 27-2-2009 decided the said tax appeal and remanded the matter to the Tribunal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 25% of the duty, in case the duty determined is changed (either increased or decreased) by the appellate authorities. However, in the present case, the Tribunal has not redetermined the quantum of duty and, therefore, the Tribunal has no power to give the option to pay reduced penalty of 25% of the duty within 30 days of communication of its order to the assessee. 8. Mr. Ravani has invited the attention of the Court to the recent Circular dated 15-9-2009 issued by the Central Board of Excise Customs, clarifying that in order to avail the benefit of 25% penalty, the duty, interest and penalty are required to be paid within 30 days of communication of the order passed by the adjudicating authority. The fourth proviso to Section 11AC st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79) RLT 109 (Delhi) [2007 (208) E.L.T. 503 (Del.) = 2007 (5) S.T.R. 256 (Del.)]. Union of India v. Dharamendra Textiles - 2008 (231) E.L.T. 3 (S.C.), Union of India v. Rajasthan Spinning Weaving Mills - 2009 (238) E.L.T. 3 (S.C.), K.P. Pouches (P) Ltd. v. Union of India - 2008 (228) E.L.T. 31 (Delhi) - Commissioner of Central Excise, Rohtak v. J.R. Fabrics Pvt. Ltd. - 2009 (238) E.L.T. 209, has taken the view that the order passed by the Tribunal retaining the penalty of 25% of the duty amount seems to be quite justified. For the reasons recorded in the said two judgments, we do not feel it necessary to take any different view in this Appeal. 10. We have an occasion to deal with similar such submission made on behalf of Revenue with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Section 11AC of the Act is imposed, the provisions contained in the first and second proviso of Section 11AC should be mandatorily mentioned in the order-in-original itself by the adjudicating authority. It is, therefore, not open for the Revenue to agitate this issue before the Court in contradiction of the Circular issued by the Central Excise Department. This Court in Messers Exotic Associates (supra) has directed the adjudicating authority to pass a fresh order giving option to the assessee to pay the duty amount within 30 days by making it explicitly clear in the order itself that if the assessee wants to avail such option he is permitted to do so. In the case on hand, since the duty amount has already been paid by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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