TMI Blog2001 (4) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for the benefit of exemption for the period dated 1-4-1995 to 13-8-1995 resulting in short-payment of central excise duty of Rs. 3,68,892/-. The show cause notice issued, also alleged that contravention of provisions of Rules (49) (sic) 173F, 173G had taken place and therefore, penalty under Rules 173Q(1)(a) and 173(Q)(1)(d) of the Central Excise Rules, 1944 was proposed. It was alleged that the fact of transfer of brand name was suppressed from the Department as the deed of assignment was withheld even in the classification list No. 1/95-96, dated 1-4-1995 and declaration No. 1/95-96, dated 1-5-1996 there was no mention to the effect of changing over of the brand name to M/s. Brookbond India Ltd. This was the reason to invoke the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir plea that there was no mala fide intention on their part, attention is drawn to the decision of the Hon ble Supreme Court of India in the case of Gujarat Travancore Agency v. CIT as reported in 1989 (42) E.L.T. 350 (S.C.). The Apex Court has held that where the language of the statute does not presuppose the presence of mens rea, then a violation of the statute itself is sufficient for imposition of penalty, because Penalty is a civil obligation and a coercive measure to check loss of revenue. 3. We have heard both sides and considered the submissions made and find : (a) The present appeal is only limited about the imposition of penalty of Rs. one lakh under Rule 173Q. (b) The Special Bench of the Tribunal found in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 18-8-1995. It is not clear from the order impugned before us whether this payment was made due to any detection made by the Central Excise Officers. It has been submitted by the appellants that this payment was made consequent to their realizing the erroneous availment of the concessions under the said notification due to clerical inadvertence. It was noticed by the appellants themselves when brought to their attention that they have paid duty amount without demur. The show cause notice has been issued only on 25-7-1996 i.e. almost after a period of one year from the date of this payment. No reasons for the delay are recorded in the notice or and the impugned order. There are no allegations brought out therein or findings arrived at, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from 18-5-1995 when sub-rule (3) was introduced which prescribed that the proper officer where he considers it necessary during the course of inquiry in connection with the declarations filed under sub-rule (1) by the assessee , he can require the production of any document including the said deed and thereafter under sub-rule (4) issue a demand under Section 11(A). No evidence has been brought out before us or by the learned adjudicator that such a course of action was undertaken, on and up to 18-8-1995. The appellants paid the amount due on that date, or even subsequent to that date, it has been proved that the appellants withheld, the said deed of assignment in the inquiries contemplated under the law. Therefore, we find no reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the law. There is no intention on the part of the appellants, to have been established, in the findings, to evade any duty. We cannot also come to a finding that goods were removed during the period of demand in contravention of any rule of Central Excise with intention to evade duty, as there is absolutely no evidence for the same. Therefore, we cannot establish any contravention under Rule 173Q(1)(d) made out in the show cause notice. When contravention of Rule 173Q(1)(a) and 173Q(1)(d) as charged in the notice, are not found to exist, we cannot uphold any penalty under 173Q as arrived at by the adjudicator. We also observe that the adjudicator has not given any finding as to whether the penalty liability arises under 173Q(1)(a) or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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