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2014 (11) TMI 493 - HC - Central ExciseImposition of penalty - Demand of differential duty - Whether the order passed by the second respondent dated 20-2-2003 has any force after the omission of Section 3A and Rule 96ZP with effect from 11-5-2001 - Held that:- decision of the Division Bench of the Gujarat High Court reported in Krishna Processors v. Union of India - [2012 (11) TMI 954 - GUJARAT HIGH COURT] was rendered on 16-3-2012 and the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) has not been brought to the notice of the Division Bench of the Gujarat High Court. Admittedly, there is no challenge to the validity of the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) at the instance of the appellant. In such circumstances, by virtue of the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) the omission of Section 3A of the Act by Section 121 of the Finance Act, 2001 is deemed to be valid and therefore, the contentions urged on behalf of the appellant does not merit acceptance. Rules 96ZQ, 96ZP and 96ZO of the Rules provides for mandatory penalty, provision for imposition of mandatory penalty even for slightest bona fide delay without discretion is beyond the purpose of legislation. It was further held that the provisions in the Rules permitting minimum penalty without any discretion and without having regard to extent and circumstances for delay are ultra vires the Act and the Constitution of India. penalty under Section 11AC is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section. there is no scope for exercise of discretion by the Tribunal in the matter of imposing penalty. Consequently, we do not find any reason to interfere with the order of CESTAT, confirming the order passed by the original authority - Following decision of Bansal Alloys & Metals Private Limited v. Union of India [2010 (11) TMI 83 - PUNJAB & HARYANA HIGH COURT] - Decided against assessee.
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