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TAXAP/2412/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2412 of 2009
=========================================
COMMISSIONER
- CENTRAL EXCISE & CUSTOMS SURAT-I - Appellant(s)
Versus
MAHALAXMI
INDUSTRIES - Opponent(s)
=========================================
Appearance :
MR
GAURANG H BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date
: 27/10/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
appellant-revenue has filed this tax appeal under section 35G of the
Central Excise Act, 1944, proposing to formulate the following
substantial questions of law for determination and consideration by
this Court.
“[1] Whether
the Ld. Tribunal is justified in the eye 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
13.01.2009?
[2] Whether
the Ld. Tribunal is justified in the eye of law, in the facts and the
circumstances of the case, in holding that the said Ld. CESTA
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 period from the receipt of the impugned
order dated 13.01.2009?
[3] Whether
the Ld. Tribunal is justified in the eye 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 eye 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 judgement
of the Hon’ble Apex Court dated 29.9.2008 delivered in the matter of
Union of India v. M/s Dharamendra Textile Processors (2008 –
TIOL-192-SC-CX-LB)?
[5] Whether
the Ld. Tribunal is justified in the eye 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 13.01.2009, especially when the said unit has failed to
make the payment of the duty amount imposed under section 12A(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-Original dated 29.12.2006 and/or the
Show cause notice dated 08.12.2005?”
Heard
Mr.Gaurang Bhatt, learned Standing Counsel for the appellant-revenue
and perused the orders passed by the authorities below.
There
is no controversy about the fact that the issue involved in the
present tax appeal is squarely covered by the decision of this Court
in the case of Commissioner of Central Excise & Customs,
Surat-II v. Mahalaxmi Industries, 2010 (2) GLH 116.
In
view of the above decision of this Court, we are of the view that no
substantial question of law arises out of the impugned order of the
Tribunal. We, therefore, dismiss this appeal.
[K.A.PUJ,
J.]
[HARSHA
DEVANI, J.]
parmar*
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