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2009 (7) TMI 640 - CESTAT, BANGALORERectification of Mistake- The issue of quantum of penalty under Section 11AC has been in dispute for past some time, as to whether there is a discretion/scope to levy penalty below the prescribed minimum. There have been conflicting judgments of various High Courts on this issue. Now the issue has been decided by the Hon’ble Supreme Court in the case of Union of India v. Dharamendra Textile Processors and it has been held that there is no scope for any discretion and that the levy of penalty is mandatory under these provisions. It has also been held that where the Statute provides for penalty for failure or default of statutory or civil obligations provided under the Act and the Regulations framed there under, mens rea is not an essential element for imposing penalty. Held that- it is felt that the decision of the Tribunal would be in conflict with the ratio of the Dharamendra Textiles case and consequently, it is felt that the Final Order has to be recalled and the matter reheard. Therefore, the Revenue’s ROM application is allowed by way of recalling the Final Order No. 1048/2008 dated 9-9-2008. Registry may list the case for re-hearing before the Division Bench.
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