9911796707
TMI Blog2011 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants against the Adjudicating Authority s order dated 30th March 2004. 2. The appellants are engaged in manufacture of non-alloy steel Ingots classifiable under sub-heading No. 7206.90 of the Central Excise Tariff Act, 1985. W.e.f. 1st September 1997, the appellants opted for the benefit of the scheme drawn under sub-Rule (3) of Rule 96 ZO of the Central Excise Rules, 1944 for the purpose of discharge of duty liability that is on lumpsum basis per month. Accordingly, they were required to pay the excise duty to the tune of Rs. 5,00,000/- (Rupees Five Lakhs) per month as their capacity of the induction furnace was of 3 M.Ts. During the period from October 1997 to November 1997, the appellants had cleared non-alloy steel ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on regarding the penalty was introduced w.e.f. 1st May 1998 and, therefore, in relation to the period from October and November 1997, there was no justification for imposition of 100% penalty. He further submitted that taking into consideration the fact that the factory remained closed for the reasons beyond the control of the appellants, the penal provision comprised under Rule 173Q was also not attracted. 4. The DR on the other hand submitted that though the provision regarding the penalty came to be introduced w.e.f. 1st May 1998, the last proviso introduced by the said amendment clearly provides that even in case of default pertaining to the month of September 1997 to March 1998 the same would be subjected to the penalty and sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 1997 and the abetment claim in that regard was already rejected and such rejection was confirmed by the Tribunal. In those circumstances, therefore, in the absence of any justifiable cause being shown mere pendency of abetment claim cannot be a ground to avoid the payment of the duty. Certainly if the assessee had succeeded in abetment claim, he could have sought refund of the amount, but pendency of the abetment claim by itself cannot be a ground to delay the payment of duty. 9. As regards the decision of the Tribunal in Jaininder Steel Pvt. Ltd. vs. CCE, Bhavnagar (supra) case, the same was delivered on concession made by the parties to the proceedings to the effect that no penalty could be imposed in respect of delayed payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the 30th day of April, 1998, he shall also be liable to pay a penalty equal to the outstanding amount of duty as on 30th day of April, 1998 or five thousand rupees, whichever is greater . 12. Plain reading of the said proviso would undoubtedly disclose that in case where the assessee fails to pay the duty in relation to the month of September 1997 to March 1998 on or before 30th April 1998 such assessee would be liable to pay the penalty equal to the outstanding amount of duty w.e.f. 1st May 1998. It appears that the law makers have introduced the said provision regarding the liability to pay penalty in case of default in payment of duty payable under Rule 96 ZO (3) on par with the provision under 11AC of the said Act. But, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Once it is clear that assessee was not given any opportunity to meet the case regarding the penalty in terms of the proviso in question, the department cannot insist for 100% penalty upon the appellants in terms of the said proviso, merely on the basis of the said provision of law which came into force subsequent to the issuance of show cause notice. 14. This does not mean that the appellants would be absolutely absolved of payment of penalty. Certainly the appellants were at the relevant time required to show cause against the imposition of penalty in terms of Rule 173Q of the said rules. Taking into consideration, the facts and circumstances of the case and also the quantum of the duty which remained to be paid, in our conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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