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TMI Blog2013 (11) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... , no option had been given to the assessee to avail of the option of lower penalty equal to 25% of the duty demand by paying the same within 30 days of communication of the order, the benefit of lower penalty under proviso to Section 11AC cannot be denied - the appellant cannot be denied the benefit of reduced penalty in terms of proviso to Section 11AC - the penalty under Section 11AC on the appellants is reduced to 25% of the duty demand confirmed – Decided in favour of Assessee. - Appeal No. 3819 and 3821 of 2010 (SM) - Final Order No. 57919-57920/2013 - Dated:- 25-9-2013 - Shri Rakesh Kumar, J. For the Appellant : Shri Mayank Garg, Advocate For the Respondent : Shri A.K. Jain, Authorized Representative (Jt. CDR) JUDGEMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2008 (228) E.L.T. 31 (Del.). 2. The question of penalty was adjudicated denovo by the Commissioner (Appeals) and in both the cases the Commissioner (Appeals) imposed penalty equal to the amount of duty demand under Section 11AC on the ground that the elements for imposition of penalty under Section 11AC are present and the appellants plea for reduced penalty under proviso to Section 11AC was rejected on the ground that once the provisions of Section 11AC are attracted, lower penalty cannot be imposed and in this regard reliance was placed on Apex court s judgment in the case of Union of India vs. Dharamendra Textile Processors reported in 2008 (231) E.L.T. 3 (S.C.). Against this judgment of the Commissioner (Appeals), these two app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab Haryana High Court has also discussed the Apex court s judgment and has held that wherever the conditions of proviso to Section 11AC are satisfied the benefit of reduced penalty under the proviso has to be given. He, therefore, pleaded that the Commissioner (Appeals) s order denying the benefit of reduced penalty under proviso to Section 11AC is not correct. 5. Shri A.K. Jain, the learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and pleaded that these are the cases of duty evasion and in these cases, the duty evasion stands admitted, that when this is the position, the provisions of Section 11AC would be attracted, that in terms of the Apex court s judgment in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, suppression of facts, contraventions of provisions of the Central Excise Act, 1944 or of the rules made thereunder with intent to evade the duty, the penalty under this Section would be imposable irrespective whether the disputed amount of duty had been paid before the issue of show cause notice and the Apex Court in the case of UOI vs. Dharamendra Textile Processors (supra) had held that once the penalty under Section 11AC is imposable, there is no discretion for the Adjudicating Authority or Appellate Authority to impose lower penalty, the first and second proviso to Section 11AC provide for the situation where lower penalty of 25% of the duty demand confirmed would be imposable. These circumstances are where the assessee pays ..... X X X X Extracts X X X X X X X X Extracts X X X X
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