9911796707
TMI Blog1990 (11) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order for which the penalty was imposed was that they removed 18 (eighteen) Motor Vehicles without payment of duty though it was paid by them later on. 2. Shri B.N. Chattopadhyay, learned Consultant appeared for them when the appeal was heard by us. He submitted that the appellants had, on their own, paid the duty which they had not paid earlier at the time of removal due to inadvertence. Actually duty .is not payable by them as what they carry out is the building of bodies on duty paid chassis which does not attract duty as they would be covered by the small-scale exemption Notification No. 175/86 which applies to goods falling under Tariff Heading 8707. It has been decided by the Punjab & Haryana High Court that building of body on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir appeal may be allowed and the order of the Additional Collector set aside. 3. Shri A. Chowdhury, learned Departmental Representative appeared for the respondent Collector. He stated that the appellants had paid the duty in question only after the Department had initiated their investigations even though such payment was before the issue of notice. The fact is that they had removed the goods without payment of duty. Penalty will be attracted under 173Q(1)(a) and the requirement of mens rea is not there for the offence of removal of excisable goods in contravention of any of the provisions of the Central Excise Rules. Their subsequent payment of duty does not justify their earlier offence. He, therefore, justified the imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same cannot be without their impact on the question of imposition of penalty. 5. We now proceed to consider the decisions relied upon by the learned Consultant. It is seen that in the Tata Oil Mills appeal the Central Board of Excise and Customs had held that there was no malafide intention on the part of the appellants inasmuch as the show cause notice and proceedings against the appellants were taken up after they had already paid the correct amount of duty. In the Dabur (Dr. S.K. Burman) Pvt. Ltd. matter Government of India had held that as the lapse of non-debiting of excise duty to PLA was brought to the notice of the authorities by the petitioners themselves, no mens rea can be alleged against them and no penalty was imposable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In respect of the 18 vehicles in question they had not paid duty at the time of their removal but paid it subsequently explaining their earlier action as due to oversight. Though they had strenuously argued that duty was paid by them on their own and it was only thereafter that the Department issued the notice of demand it is seen from the adjudication order that they were addressed by the Department to state whether they had cleared any vehicles without payment of duty other that the eight vehicles. By their letter dated 17-8-1987 they inimated that they had removed 10 vehicles to Nagaland State Transport without payment of duty. Thus, the action of the appellants in making payment of duty though not the result of a show cause notice or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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