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2009 (8) TMI 864

..... for the Appellant. Shri P.K. Singh, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the learned advocate for the appellant and learned DR for the respondent. 2. This appeal arises from the order dated 5-8-2003 passed by the Commissioner (Appeals), Jaipur. In fact, the matter arises on account of order of remand passed by the High Court of Rajasthan in Central 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 .....

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..... (52) RLT 644. 6. The learned DR, on the other hand, drawn our attention to the decision in the matter of Beauty Dyers v. Union of India, 2004 (163) E.L.T. 28 (Mad.), and submitted that, the Madras High Court has no where declared the Rule relevant for the decision in the matter in hand to be ultra vires. On the contrary, the decision relied upon by the learned DR, the High Court has proceeded to confirm 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 .....

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..... he provisions of law and bearing in mind the ruling in that respect by the Apex Court. Being so, in our considered opinion, there is absolutely no scope for adjournment of the hearing on the ground sought to be alleged. 9. Reverting to the facts of the case, the challenge is restricted to the imposition of penalty and that too on the ground that the delay in payment of duty was not significant and was 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 th .....

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..... RED TO BE PAID AS PER FINAL ORDER OF THE COMMISSIONER DUE DATE OF PAYMENT AMOUNT OF DUTY PAID BY DUE DATE AMOUNT OF DUTY PAID AFTER DUE DATE & DATE OF PAY-MENT DELAY (NO. OF DAYS) AMOUNT OF INTEREST RECOVERABLE @ 36% AMOUNT OF DUTY NOT PAID TILL DATE REMARKS Dec-98 2052129 (for the period from 16-12-98 to 31-12-98) 31-12-99 1999484 0 0 0 52645 Jan-99 1-1-99 to 21-1-99 22-1-99 to 31-1-99 TOTAL 2693419 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 .....

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..... duty or any part thereof by the date specified in sub-rule (3), he shall be liable to - (i) pay the outstanding amount of duty along with interest at the rate of thirty-six per cent per annum calculated for the outstanding period on the outstanding amount; and (ii) a penalty equal to an amount of duty outstanding from his or rupees five thousand, whichever is greater. 12. The provision of law, as comprised 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 .....

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..... State of Orissa, 1978 (2) E.L.T. J159 (S.C.), as also various High Court decisions. However, in view of the decision of the Apex Court in Dharamendra Textile Processors (supra), we do not find any case for interference in the impugned order. 14. Once the statute mandates that the assessee who fails to discharge his tax liability within the specified period or by due date, the financial constraints or even the delay of short period, cannot be a justification to reduce the penalty amount. As the statute requires the penalty to be equal to the amount of duty outstanding and thereafter no discretion left to the authority, for the same reason, it would not be appropriate for the Tribunal to be generous in reducing the penalty amount contrar .....

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