TMI Blog2011 (5) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Rules, 1944. The appeal dismissed - E/3854/2003-Mum - A/404/2011-WZB/C-II(EB) - Dated:- 27-5-2011 - S/Shri Rakesh Kumar, Ashok Jindal, JJ. REPRESENTED BY : Shri A.V. Naik, Advocate, for the Appellant. Shri S.S. Katiyar, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts giving arise to this appeal are in brief are as under :- 2. The appellants are Independent Processors engaged exclusively in processing, with the aid of power, of Textile Fabrics of Cotton and Man Made Yarn chargeable to Central Excise duty under Chapters 52 and 55 of the Central Excise Tariff. During the period of dispute, they had opted for discharge of duty liability under Compounded Levy Scheme of Rule 96ZQ of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Central Excise, Pune and Surat (Order No. C-II/737-39/WZB/03 dated 9-3-2003), wherein the Tribunal, relying upon judgment of Hon ble Madras High Court in the case of Beauty Dyers v. Union of India reported in 2002 (52) RLT 644 = 2004 (163) E.L.T. 28 (Mad.) had held that Hot Air Independent Textile Processors Annual Capacity Determination Rules, 1998 are ultra vires of Section 3A of Central Excise Act, 1944, set aside the penalty, pleaded that when the Hot Air Independent Textile Processors Annual Capacity Determination Rules, 1998, themselves have been held to be ultra vires of Section 3A of the Central Excise Act, and as such the Commissioner s order fixing the duty liability based on annual capacity of production is invalid, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court in the case of Union of India v. Dharamendra Textile Processors reported in 2008 (231) E.L.T. 3 (S.C.) has held that when Rule 96ZQ(5)(ii) of Central Excise Rules prescribes penalty equal to duty amount outstanding or Rs. 5,000/-, whichever is higher, for failure to pay duty by the due date, there is no scope for the adjudicating authority to impose lower penalty and that a co-ordinate Bench of the Tribunal in the case of Hindustan Processors Ltd. v. Commissioner of Central Excise, Jaipur reported in 2009 (243) E.L.T. 372 (Tri.-Del.), wherein an identical issue was involved, has upheld the imposition of penalty equal to the duty amount outstanding under Rule 96ZQ(5)(ii) of Central Excise Rules and in this judgment, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Hindustan Processors Ltd. v. Commissioner of Central Excise, Jaipur (supra) where identical issue is involved, has upheld the penalty equal to the outstanding duty liability under Rule 96ZQ(5)(ii) of the Rules observing that Hon ble Madras High Court in the case of Beauty Dyers v. Union of India (supra) has nowhere held sub-rule (5) of Rule 96ZQ to be ultra vires. Same view has been taken by Hon ble Supreme Court in a recent judgment in the case of CCE, Mumbai v. Sunil Silk Mills reported in 2011 TIOL-47 (SC)-CX. = 2011 (267) E.L.T. 438 (S.C.). Following the judgment of Co-ordinate Bench of this Tribunal in the case of Hindustan Processors Ltd. (supra) and also Apex Court s judgments in the cases of Dharamendra Textiles P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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