Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 27 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Application No.C/S/1247/10
Appeal No.C/367/10
Arising out of OIA No.KS/49-50/SRT-II/2010 dated 30.03.10
Passed by: Commissioner of Central Excise & Customs (Appeals), Surat
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Dr. P. Babu, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Spectrum Fabrics
Represented by Shri Jerry Lopez, Adv
Vs.
Respondent/s CCE Surat
Represented by Shri R. Nagar, SDR CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) DR. P. BABU, MEMBER (TECHNICAL) Date of Hearing :27.06.11 Date of Decision:27.06.11 ORDER No. /WZB/AHD/2011 Per: Mrs. Archana Wadhwa:
As the appellants have deposited the entire duty of Rs.2,98,163/- confirmed against them along with interest amount of Rs.1,176/- and 25% of the penalty imposed upon them, we dispense with the condition of pre-deposit of balance amount of penalty and proceed to decide the appeal itself with the consent of both the sides.
2. Learned advocate appearing for the appellant submits that they are not disputing the confirmation of demand of duty of Rs.2,98,163/- which was actually deposited by them prior to the issuance of the show cause notice i.e. on 01.10.02. Thereafter the matter was taken up for adjudication and the original adjudicating authority confirmed the said duty along with interest and imposition of penalty of identical amount under Section 114A of the Customs Act, 1962. The appellant deposited the interest of Rs.1,176/- on 26.08.10. Before Commissioner (Appeals), the appellant only challenged that part of the order of the original adjudicating authority vide which no option was given to them to pay the entire dues along with 25% of penalty. As such they pleaded before Commissioner (Appeals) that such option be extended by him.
3. The Commissioner (Appeals) refused to reduce the penalty to 25% on the ground that though the appellants have deposited the entire duty but they have not deposited the interest, in which case the Proviso to Section 114A cannot be invoked.
4. After hearing both the sides we find that issue is no more res-integra. Tribunal in the case of Swathi Chemicals Industries Ltd. reported in 2009 (248) ELT 421 and the Honble High Court of Gujarat in the case of Exotic Associates Vs. CCE reported in 2010 (252) ELT 49 (Guj.) and CCE Vs. Harish Silk Mills reported in 2010 (255) ELT 393 (Guj.) has held that where no such option stands extended by the authorities below, the same can be extended by the higher appellate forum. We find that the appellants have now deposited the entire duty, interest and penalty of 25%, and in as much as no option was given by the lower authorities, we are of the view that penalty is required to be reduced to 25%. We order accordingly. The demand and interest stand confirmed in as much as there is no contest to the same. Stay petition as also appeal get disposed off in above manner.
(Dictated & Pronounced in Court)
(P. Babu) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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