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TAXAP/2321/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2321 of 2010
=========================================================
THE
COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, VADODARA-II - Appellant(s)
Versus
M/S.
AUTOMOTIVE STAMPINGS ASSEMBLIES LTD. - Opponent(s)
=========================================================
Appearance :
MR
YN RAVANI for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 21/04/2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
Revenue
has proposed following question of law for consideration of this
Court.
i. “Whether
the appellate authority can allow the benefit of ‘reduction of
penalty imposed under Section 11AC of the Central Excise Act, 1944 to
25% of the deemed confirmed, if paid along with other dues within 30
days of its order’ when the law provides reduction of penalty to 25%
of the duty confirmation only when the amount of duty demanded along
with interest payable, and 25% of the penalty is paid within thirty
days from the communication of the order of the Central Excise
Officer determining such duty?”
Briefly
to state the facts.
2.1 Assessee-respondent
engaged in manufacture of excisable goods parts of motor vehicles
and tools, dyes and fixtures was issued the show cause notice for
levying the duty, interest and penalty under the Central Excise Act.
Certain irregularities and illegalities were found during the
preventive check by the officers of Commissionerate, Vadodara. This
clearance without payment of duty was adjudicated by the
adjudicating officer and after hearing the assessee-respondent
levied the duty, interest and penalty.
This
was challenged in appeal before the Commissioner (Appeals). It has
upheld the duty, interest and penalty. This was further carried in
appeal before the Customs, Excise & Service Tax Appellate
Tribunal (CESTAT) which vide its order dated 21st May,
2010 had set aside the penalty of Rs.1,86,781/-. The impugned order
is challenged raising aforementioned question of law.
Counsel
for the revenue Mr.Ravani, argued before this Court on line of
reasons set out in the appeal memo and insisted to set aside the
impugned order. The Tribunal has dealt with issue of penalty in the
following manner and to appreciate, it would be apt to reproduce the
same.
“3. After
appreciating the submission made, I reduce the penalty in the first
two cases to 25% of the duty amount, in as much as duty was deposited
before issuance of show cause notice and no option to deposit the
reduced penalty was given by the authorities below. Further penalty
of Rs.1,86,781.00 imposed on account of inputs not received during
the period of 180 days stand set aside”.
On
the basis of the facts presented before the Tribunal and also on the
ground that there was no option given to deposit the reduced
penalty, it has reduced in first two cases penalty to 25%, of
course, the order does not specify that in the event of any payment
within 30 days, penalty would be leviable to 100% of the duty
payment. Albeit, it is not the case of the revenue that the said
amount of penalty is not paid within stipulated period.
Under
the circumstances, order having been passed essentially based on the
facts on record and consequential order of duty and that of penalty
is based accordingly, we see no reason to interfere and the appeal
deserves dismissal and accordingly, stands dismissed.
(AKIL
KURESHI, J.)
(Ms.SONIA
GOKANI, J.)
(ashish)
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