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TMI Blog2009 (7) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals stand remanded by Hon'ble High Court of Gujarat, with directions to decide the issue afresh in the light of the Hon'ble High Court decision in case of UOI vs. M/s. Dharmendra Textile Processors 2008 (89) RLT 103 (SC-LB) = 2008 (231) ELT 3 (SC) and in terms of proviso to Section 11AC. 2. As the facts in each and every case are different, they are being narrated separately, in short, as under: i) Appeal No.E/68/2004: Being aggrieved with the order passed by Commissioner (Appeals), vide which he has set aside the penalty imposed under Section 11AC of the Act, by following the Larger Bench decision in case of M/s Machine Montell (I) Ltd. 2004 (62) RLT 709 (CESTAT-LB), Revenue filed the appeal for enhancement of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed against the assessee along with penalty of equal amount by original adjudicating authority. The said penalty was reduced by Commissioner (Appeals) by taking note of the fact that the entire duty stand paid before issuance of show cause notice and accordingly reduced the same to ₹ 1.5 lakhs. On an appeal filed by the Revenue, Tribunal upheld the order of the Commissioner (Appeals) and rejected the appeal filed by the Revenue. vi) Appeal No.E/158, 159/2006: The appeal was filed by the Revenue against order of Commissioner (Appeals), vide which while confirming the demands of duties against the assessees, the penalties were reduced to ₹ 10,000/-. The said appeals filed by the Revenue were rejected by Tribunal af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced the penalty from ₹ 1,38,377/- to ₹ 50,000/- on the ground that the duty was deposited before issuance of show cause notice, Revenue filed the appeal before Tribunal. The said appeal of the Revenue was rejected by taking note of the decision of Hon'ble High Court of Delhi in case of CCE vs. Malbro Appliances 2007 (79) RLT 109 (Delhi) and by observing that as penalty amount of ₹ 50,000/- was more than 25% of the duty amount, there is no reason to enhance the same. x) Appeal No.E/369, 2963/2006: Duty of ₹ 5,19,848/- was confirmed against the assessee by original adjudicating authority along with penalty of ₹ 2.5 lakhs under Section 11 AC. The said order was challenged by assessee before Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by taking note of the decision of Hon'ble High Court of Delhi in case of CCE vs. Malbro Appliances 2007 (79) RLT 109 (Delhi), reduced the penalty to 25% of the duty determined. xiii) Appeal No.E/756/2007: Commissioner (Appeals), while confirming the demand of duty on the allegations of clandestine removal, set aside the penalty imposed upon the assessee. On an appeal filed by the Revenue, penalty was enhanced to 25% of duty amount, in the light of the law declared by the decision of Hon'ble High Court of Delhi in case of CCE vs. Malbro Appliances 2007 (79) RLT 109 (Delhi). xiv) Appeal No.E/1374/2006: Being aggrieved with the order passed by Commissioner (Appeals), vide which he has reduced the penalty imposed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s K.P. Pouches (P) Ltd. vs. UOI 2008 (85) RLT 483 (Del). 3. I find that the law stands declared by the Hon'ble Supreme Court in the above referred judgment in the case of M/s. Dharmendra Textile Processors laying down that where the provisions of Section 11AC are invoked, authorities have no discretion to impose less penalty. In view of the above, penalty in all the appeals is increased to the 100% of the duties involved in each case. 4. However, at this stage I take note of the first and second Proviso to Section 11AC, which were not the subject matter of the Hon'ble Supreme Court's judgment. In terms of the said Proviso, if duty and interest is paid within thirty days from the date of communication of the order, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble High Court of Punjab and Haryana, the orders not giving such an option to the assessees are illegal and have to be set aside. If that be so, the matters need to be remanded for adjudging penal liabilities in terms of Apex Court's judgment in the case of Dharmendra Textiles, along with extending option in terms of 1st and 2nd Proviso to Section 11AC. In such a scenario, the period of 30 days to deposit the dues along with 25% of penalty shall start running from the date of passing fresh orders by the adjudicating authority. However, instead of adopting the above route, penalties can be enhanced at appellate level with option to deposit reduced penalties along with other dues within a period of thirty days from the date of passing ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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