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TAXAP/2312/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2312 of 2009
=========================================
COMMISSIONER
- CENTRAL EXCISE & CUSTOMS SURAT-I - Appellant(s)
Versus
SANTOSH
TEXTILES - Opponent(s)
=========================================
Appearance :
MR
GAURANG H BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 30/09/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
The
appellant-revenue has challenged the order dated 12.3.2009 made by
the Customs, Excise & Service Tax Appellate Tribunal, proposing
the following questions:
“[1] Whether
the Ld. Tribunal is justified in the eyes of law, in the facts and
the circumstances of the case, while confirming and upholding the
duty-amount, reducing the penalty to 25% of the said duty-amount if
paid within thirty days of the receipt of the impugned order dated
05.03.2009?
[2] Whether
the Ld. Tribunal is justified in the eyes of law, in the facts and
the circumstances of the case, in holding that the said Ld. CESTAT
Tribunal has the discretionary Authority under the Statute to reduce
the penalty to 25%, which is imposed under Section 11AC of the
Central Excise Act, 1944, by granting the fresh period of thirty days
to the said unit for the said payment from the receipt of the
impugned Order dated 05.03.2009?
[3] Whether
the Ld. Tribunal is justified in the eyes of law, in the facts and
the circumstances of the case, in the interpretation and the
application of the Statutory provisions contained in Section 11AC and
Section 35F of the Central Excise Act, 1944?
[4] Whether
the Ld. Tribunal is justified in the eyes of law, in the facts and
the circumstances of the case, in considering the Statutory
provisions of Section 11AC of the Central Excise Act, 1944 as the
directory in nature rather than the mandatory in nature, inspite of
the judgment of the Hon’ble Apex Court dated 29.09.2008 delivered in
the matter of UNION OF INDIA V/s. M/s. DHARAMENDRA TEXTILE PROCESSORS
(2008-TIOL-192-SC-CX-LB)?
[5] Whether
the Ld. Tribunal is justified in the eyes of law, in the facts and
the circumstances of the case, in reducing the penalty to 25% of the
duty-amount if paid within thirty days from the receipt of the
impugned Order dated 05.03.2009, especially when the said unit has
failed to make the payment of the duty-amount imposed under Section
11A(2), interest payable thereon under Section 11AB, along with the
penalty of 25% of the said duty-amount liable under Section 11AC of
the Central excise Act, 1944, within the period of thirty days from
the communication of the Order-in-Appeal dated 22.10.2008 and/or the
Order-in-Original dated 26.12.2006 and/or the show-cause notice dated
17.03.2005?”
Heard
the learned Standing Counsel for the appellant.
As
can be seen from the impugned order made by the Tribunal, the
Tribunal has placed reliance upon an earlier decision of the
Tribunal rendered in the case of M/s Mahalaxmi Industries while
confirming the order made by the Commissioner (Appeals) holding that
the respondent-assessee was eligible to avail the facility of
payment of penalty @ 25% provided that both penalty and interest are
paid within 30 days of receipt of the Order-in-Appeal. It is an
accepted position that against the decision of the Tribunal in the
case of M/s Mahalaxmi Industries (supra), revenue had preferred
appeal before this High Court, which came to be dismissed vide
judgement rendered in the case of Commissioner of Central
Excise & Customs, Surat-II v. M/s Mahalaxmi Industries,
(2010) 2 GLH 116. In the circumstances, it is not necessary to set
out the facts and contentions in detail.
In
the circumstances, following the aforesaid decision of this High
Court in the case of Commissioner of Central
Excise & Customs, Surat-II v. M/s Mahalaxmi Industries
(supra), this appeal is also dismissed.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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