TMI Blog2012 (9) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty - This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002)1 SCC 279. In the said decision, the Court has stated that : 31. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cautions" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act. 6. Following the aforesaid decision, the appeal is allowed and the orders passed by the First Appellate Authority Board and the High Court are set aside and the order passed by the Original Authority is restored. No costs. 7. Ordered accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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