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TMI Blog2015 (5) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Therefore, imposition of penalty is not automatic. Only if the conditions prescribed in Section 11AC of the Act is fulfilled, then there is no discretion left with the authority except imposing penalty. - portion of the order setting-aside the imposition of penalty is hereby set-aside. The matter is remitted back to the original authority to consider the leviability of penalty in the light of the statutory provisions contained under Section 11AC of the Act and the interpretation by the Apex Court in the [2009 (5) TMI 15 - SUPREME COURT OF INDIA] and [2008 (9) TMI 52 - SUPREME COURT] in accordance with law. - Matter remanded back - Decided in favour of Revenue. - CEA NOS. 43 OF 2005 & 1, 20, 29 AND 39 OF 2006 , CSTA NO. 7 OF 2005† - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the aforesaid judgment. After the judgment in Dharamendra Textile Processors (supra) case, in almost every case relating to penalty, the Revenue was contending that the Apex Court has laid down that in every case of non-payment or short payment of duty, the penalty clause get automatically attracted and the authority has no discretion in the matter. 4. Further, the Apex Court in the case of Union of India V/s. Rajasthan Spinning and Weaving Mills reported in (2010) 1 GSTR 66 (SC), after examining the law laid down by the Apex Court in Dharamendra Textiles Processors (supra) case held that they failed to see how the decision in Dharamendra Textiles' case can be said to hold that Section 11AC of the Act would apply to every c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the payment of interest has become automatic. However, the question which arises for consideration is, what is the rate of interest to be charged? That depends upon the notification issued from time to time. Therefore, the matter is remanded back to the original authority to decide the rate of interest leviable for these delayed payments irrespective of the reason for the delay in payment of duty. 7. Insofar as CSTA No. 7/2005 is concerned, penalty was imposed, both on the Company as well as the Directors. The lower Appellate Authority and the Tribunal has set-aside the imposition of penalty on Directors. Though the Revenue preferred an appeal against that portion of the order setting-aside the penalty on the ground that it is not le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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