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2009 (8) TMI 864

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..... tral Excise Appeal No. 24/05 under order dated 2nd April, 2008. By the said order, the High Court has set aside the earlier order passed in this appeal by this Tribunal on 22-1-2004 and has directed for afresh decision in the appeal in accordance with law as well as on merits. 3. The challenge to the impugned order is in relation to the penalty imposed upon the appellant on account of delay in payment of duty and in exercise of powers under Rule 96-ZQ(5)(ii) of the Central Excise Rules, 1944. 4. When the matter was taken up for hearing, learned advocate appearing for the appellant sought adjournment of the hearing on the ground that, the appellant wants to move the High Court for review of the order dated 2nd April, 2008 on the gr .....

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..... nfirm the duty and penalty liability in terms of the said provisions of law. 7. The request for adjournment, on the ground alleged, was rejected and the learned advocate was asked to proceed to address in the matter on the merits of the case. He accordingly proceeded to argue the matter on merits. Indeed, the request for adjournment was thoroughly uncalled for. Undoubtedly, the decision of the Rajasthan High Court dated 2nd April, 2008 does refer to the decision of the Madras High Court which was reported in 2004 (163) E.L.T. 28 (Mad.) = 2002 (52) RLT 644, while setting aside the order passed by this Tribunal earlier in this appeal. However, at the same time, the High Court also refers to the decision of the Supreme Court in the matter .....

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..... as hardly of few days and in one case it was of hardly one day and secondly that the financial difficulties faced by the appellant did not permit the appellant to clear the dues in time. Drawing our attention to the decision in the matter of C.C.E, Meerut v. Garwal Rolling Mills (P) Ltd., 2009 (240) E.L.T. 80 (T-Del), learned advocate for the appellant submitted that, sub-rule (5) cannot be construed to deny discretionary power to the authorities in the matter of imposition of penalty and the amount of penalty should be on the basis of the facts of each case. According to the learned advocate, in a case where the delay is of hardly of few days, the authorities have to exercise their discretion in imposing minimum possible penalty. He furthe .....

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..... 1129677 3823096 5-1-99 0 2400000/ 11-1-99 1474000/ 14-1-99 6 9 14203 13084 NIL In the month of Feb-99 & March-99 the duty of Rs. 2397741/-has been debited against the refund allowed to the assessee by the Asstt. Commissioner against abatement claimed under Sec. 3A. Feb-99 1-2-99 to 4-2-99 15-2-99 to 28-2-99 TOTAL 1751000 1251000 3002000 15-2-99 613420 986580/ 18.2.99 800000/ 24-2-99 3 9 2919 7101 602000 Mar-99 2502000 15-03-99 1995200 205000/ 26.3.99 46897/ 27.3.99 152903/ 30.3.99 11 12 15 2224 555 2262 102000 42348 756645 Annexure-A DETAILS OF THE PAYMENT OF DUTY UNDER SECTION 3 A BY M/S HINDUSTAN PROCESSORS LTD., BHILWARA FROM 01.04.99 TO 30.06.99 MONTH DUTY REQUIRED TO BE PAID AS PER FINAL ORDER OF THE COMMISSIONER DUE DATE OF PAYME .....

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..... omprised under sub-rule (5) of Rule 96-ZQ of the said Rules, therefore, makes it obligatory to pay interest in case of delayed payment of duty as well as to pay the penalty. The two sub-clauses of said Rule 5 of Rule 96-ZQ clearly disclose that, liability under both the clauses is neither alternative nor optional nor it leaves any discretion either to the authority or to the assessee. The expression shall be liable to refers to the obligation to pay interest on the delayed amount of payment of duty as well as to pay the penalty. As regards the amount of penalty is concerned prior to 28th February, 1999, it was restricted to equal to an amount of duty outstanding from him at the end of such month . However, w.e.f. 28th February, 1999, the ex .....

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