TMI Blog1989 (2) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... cables and conductors at Bangalore. The Central Excise officers verified the accounts of the appellants on 8-3-1985 and found that the appellants had received a sum of Rs. 4,84,538.29 on 31-10-1983 from M/s. Kerala State Electricity Board on account of increase in the labour Index for the period August, 1980 to February, 1981 towards the supply of Aluminium Conductors. The appellants were also found to have received a sum of Rs. 2,26,100.66 in excess of the invoice value towards the supply of Aluminium Conductors from M/s. Maharashtra Electricity Board on account of price variation. The excess amount collected by the appellants on grounds of escalation charges from the said parties was not brought to the notice of the Central Excise author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the escalation charges collected by the appellants from the said two parties in the year 1981 and 1983. When the duty in regard to the same had already been paid by the appellants and RT-12 assessments were also made by the Superintendent of Central Excise in regard to the same, imposition of penalty is not warranted in the circumstances of the case. The learned Consultant further submitted that the Superintendent of Central Excise is competent to impose penalty under Rule 173Q of the Rules by issuing a show cause notice while assessing the RT-12 returns of the appellants and when the Superintendent has not done so, it is not open to the Collector to revive the issue for imposing penalty after a lapse of more than 2 years. 4. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultant for the appellants. On going through the entire records and the relevant circumstances we are satisfied that the appellants are guilty of intentional evasion of payment of duty by not bringing to the notice of the Department the escalation charges collected by them as early as in 1981 and 1983 and discharging the duty liability thereon. As rightly pointed out by the learned D.R., it is only subsequent to the scrutiny of the appellants accounts by the officers of the Central Excise Department on 8-3-1985 this evasion of duty on the part of the appellants was detected and the duty was paid by appellants consequently on 9-3-1985 and 11-7-1985. Though we are inclined to agree with the submission of the learned D.R. that the conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised his discretion against imposition of penalty in favour of the appellant. It is not disputed before us nor is it disputable that assessment of RT-12 returns is in exercise of the power of assessment by the Superintendent of Central Excise. The learned D.R. also does not dispute the fact that the Superintendent while assessing the RT-12 returns can exercise his powers for imposition of penalty under Rule 173Q by issue of show cause notice. In other words the power of the Superintendent in making an assessment of RT-12 returns is a quasi-judicial power of assessment and imposition of penalty follows as a consequence in an assessment depending upon the nature and gravity of the offence or evasion of duty committed by a party. Though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be arbitrary or perverse, or non-exercise of discretion by a decision making Authority - the Superintendent of Central Excise in the present case - warrants interference at the hands of a superior Authority like Collector, in exercise of his powers of correctional jurisdiction such order of Superintendent could be called in question and rectified in terms of Section 35E(2) of Central Excises and Salt Act, 1944. Section 35E(2) of the Act reads as under : 35-E(2) The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority sub-. ordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty, etc. There is no bar of limitation on the part of the Collector to institute action for imposition of penalty and, therefore, reference to the proviso to Section 11A is not relevant in the context of the present case. It would have been open to the Collector to take upon himself assessment done by the Superintendent of Central Excise and institute proceedings for the imposition of penalty under Rule 173Q. One another important circumstance we would like to advert to in the present case is the fact that for more than 2 years no action was taken by any officer of the Department and we are at a loss to understand as to why no competent authority ever thought fit to institute any penal action under the Act or Rules for an inord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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