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TMI Blog2010 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... mined the quantum of duty? Heard Mr. Y. N. Ravani, learned Standing Counsel appearing for the Revenue and perused the orders passed by the authorities below. The brief facts giving rise to this appeal are that the adjudicating authority had passed an Order-in-Original on 9-10-2006 dropping the proceedings against the assessee. Being aggrieved by the said Order-in-Original, the Revenue filed appeal before the Commissioner (Appeals) who vide his order dated 20-6-2007 raised the demand of duty of ₹ 3,22,907/-under Section 11A(2) of the Central Excise Act, 1944 and imposing penalty of ₹ 1,00,000/- under Section 11AC and charging interest at the prescribed rates under Section 11AB of the Central Excise Act, 1944. Being aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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. Mr. Ravani has invited the attention of the Court to the recent Circular dated 15-9-2009 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2008, in the case of Commissioner of Central Excise Customs v. Rama Synsilk Mills P. Ltd., decided on 21-1-2010. This Court after considering the decision of Commissioner of Central Excise v. Malbro Appliances, 2007 (79) RLT 109 (Delhi), Union of India v. Dharmendra 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 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 itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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