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TMI Blog2010 (2) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of its order to avail benefit of reduced penalty at 25% of duty, though CESTAT has not re-determined the quantum of duty ? 2. Heard Mr. Y. N. Ravani, learned Standing Counsel appearing for the Revenue and perused the orders passed by the authorities below. 3.The brief facts giving rise to this appeal are that the adjudicating authority had5passed an order in original on 30.03.2005 confirming the demand of duty of ₹ 1,02,428/- under Section 11 A (2) of the Central Excise Act, 1944 and imposing penalty equivalent to the amount of duty demanded under Section 11AC read with Rule 173Q of the Central Excise Rules, 1944 and charging interest at the prescribed rates under Section 11AB of the Central Excise Act, 1944. The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the order, in which case the penalty shall stand restricted to 25% of the duty amount. 6. It is this order which is under challenge in the present tax appeal. 7. Mr. Ravani has submitted that in the remand matter, the Tribunal has wrongly passed an order by incorrect interpretation of the decision of the Apex Court in the case of M/s. Dharmendra Textile Processors (Supra). He has further submitted that the Tribunal can give such option to the assessee only on those cases, where the duty demanded to be payable has reduced or increased by it, which is clearly stipulated in the Central Excise Act. Third and fourth proviso to Section 11AC is regarding giving benefit of reduced penalty of 25% of the duty, in case the duty determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 9. We have considered the submissions made by Mr. Ravani and also perused very minutely the order passed by the authorities below. As a matter of fact, all these submissions urged by Mr. Ravani were already considered by this Court in its order dated 18.11.2009 in the case of Messers Exotic Associates Vs. Commissioner of Central Excise (Tax Appeal No.572 of 2007 with Tax Appeal No.869 of 2007 and Tax Appeal No.1942 of 2008, in the case of Commissioner of Central Excise Customs Vs. Rama Synsilk Mills P. Ltd., decided on 21.1.2010. This Court after considering the decision of Commissioner of Central Excise Vs. Malbro Appliances, 2007 (79) RLT 10 9 (Delhi), Union of India Vs. Dharmendra Textiles, 2008 (231) ELT 3 (SC), Union of India V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by us in Tax Appeal No.572 of 2007 with tax Appeal No.869 of 2007 decided on 18.11.2009. We have observed therein that the adjudicating authority has not calculated the interest neither in the order-in-original nor even thereafter. It is, therefore, too much to expect from the respondent - assessee to pay the interest alongwith the duty amount in absence of such calculation of interest. As far as statutory obligation of the adjudicating authority is concerned, the Central Excise Department itself has earlier issued Circular on 22.5.2008 wherein it is clarified that in all cases wherein penalty under Section 11AC of the Act is imposed, the provisions contained in the first and second proviso of Section 11AC should be mandatorily menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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