TMI Blog2008 (6) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ahabad in the case of Pee Aar Steels Pvt. Ltd. [2004 (4) TMI 85 - HIGH COURT OF JUDICATURE AT ALLAHABAD], which was prominently quoted by the Commissioner (Appeals) to uphold the penalty imposed by the adjudicating authority? Held that:- Wherever the provision gives power to the authorities concerned to impose penalty equivalent to the duty payable, the authorities have to impose the maximum penalty and cannot reduce the same depending upon the facts and circumstances of the case. Appeal dismissed. - 1362-1364 of 2008 - - - Dated:- 12-6-2008 - K. Raviraja Pandian and P.P.S. Janarthana Raja, JJ. [Judgment per : K. Raviraja Pandian, J.]. - The Department has filed these appeals against the order of the Customs, Excise and Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n considered by the Supreme Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals reported in 1998 (99) E.L.T. 33 (S.C). We are of the view that it is apropos to extract certain portions of the above referred judgment of this Court dated 24-3-2008 : "…7. A very similar worded Section 7(5) of the Entry Tax Act of the State of Madhya Pradesh has been considered by the Supreme Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals reported in 1998 (89) E.L.T. 44 (S.C). Section 7(5) of the Entry Tax Act reads as follows : "(5) Where a registered dealer referred to in sub-section (1) or sub-section (2) has, in the course of his business, sold local goods to other registered dealers and has failed to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be construed to mean that the presumption contained therein is rebuttable and secondly the penalty of ten times the amount of entry tax stipulated therein is only the maximum amount which could be levied and the assessing authority has the discretion to levy lesser amount, depending upon the facts and circumstances of each case. Construing Section 7(5) in this manner the decision of the High Court that Section 7(5) is ultra vires cannot be sustained." 9. The above Supreme Court decision has been taken note of by the Tribunal with reference to the facts of the present case while passing the impugned orders. The circumstances of the case has been explained by saying that it had found an unexplained delay, albeit short, in the payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04) 5 SCC 751 for consideration. 4. In the above referred judgment of this Court dated 24-3-2008, this court has followed the judgment of the Supreme Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals reported in 1998 (99) E.L.T. 33. That case has also been referred in the decision of the Supreme Court in the case of Sony India Limited v. Commissioner of Central Excise, Delhi reported in (2004) 5 SCC 751. 5. In paragraph No. 7 of the judgment of the Supreme Court in the case of Sony India Limited v. Commissioner of Central Excise, Delhi reported in 2004 (167) E.L.T. 385 (S.C.) = (2004) 5 SCC 751, the Supreme Court observed as follows :- "7 Now the other aspect that has to be considered is whether penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of their removal from the factory and gifts were offered by the appellant to indicate that the consideration in the sale transaction was not solely the price. These factors, we think, were rightly taken note of by the authorities and the penalty imposed need not be considered in the present proceedings. 6. From the reading of the above observation, we are of the view that the said judgment cannot be regarded as laying down an absolute proposition of law that wherever the provision gives power to the authorities concerned to impose penalty equivalent to the duty payable, the authorities have to impose the maximum penalty and cannot reduce the same depending upon the facts and circumstances of the case. 7. For the foregoing reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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