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TMI Blog2013 (12) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 passed by High Court in Tax Appeal No.1275/2006:- "6. However, having considered the total compass of the matter, it was clear from the order of remand passed by this court in Tax Appeal No.1275 of 2006 that the issue was remitted back to the Tribunal and the Tribunal was directed to consider and decide the same in 'light of the two Apex Court decisions in the case of Dharmendra Textile Processors (supra) and Rajasthan Spinning and Weaving Mills (supra). From the impugned order of the Tribunal, extracted hereinabove, it was noticed at the outset that the Tribunal did not discuss the issue with reference to those decisions of the Apex Court. 6.1 When the Tribunal was specifically directed to consider said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. On an appeal before Commissioner (Appeals), the said OIO passed by the adjudicating authority was upheld. Appellant took the case before CESTAT who passed order dt.20.03.2006 and held that since the entire amount of duty was paid before the issue of show cause notice, the penalty and interest was not payable by the appellant. Against the order dt.20.03.2006, Revenue filed Tax Appeal No. 1275/2006 before High Court of Gujarat and by order dt.23.06.2009, High Court set aside the order dt.20.03.2006 and remanded the matter to CESTAT for considering the applicability of Section 11AC of the Act in the light of judgment of Apex Court in the case of UoI Vs. Dharmendra Textile Processors [(2008) 13 SCC 368] and in the case of UoI Vs. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing case laws to support his claim that admitting shortages does not mean clandestine removal and hence no penalty imposable:- a) CCE Meerut-I Vs. Silvertone Papers Ltd. [2013 (287) ELT 478 (Tri-Del) ] b) CCE Kanpur Vs. Minakshi Castings [2011 (274) ELT 180 (All.)] c) Galaxy Textiles Vs. CCE Vapi [2011 (263) ELT 604 (Tri-Ahmd) ] d) Mahavir Polyplast (P) Ltd. Vs. CCE Kanpur [2013 (287) ELT 139 (Tri-Del) ] 4. Shri P.N. Sarvaiya, (A.R.) appearing on behalf of the Revenue argued that once shortages are not satisfactorily explained, it is a clear cut case of clandestine removal of goods and penalty under Section 11AC of Central Excise Act, 1944 has been correctly imposed. 5. Heard bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharamendra Textile decides." 5.3 In view of the above, first it has to be seen and established that in a particular case, the facts stated in Section 11AC of Central Excise Act, 1944 are applicable. Once 'Section 11AC is found applicable then an adjudicating authority has no discretion to reduce the penalty specified in Section 11AC of the Act. 6. In the light of the above law laid down by the Apex Court, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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