TMI Blog2012 (11) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... m penalty without any mens rea is excessive and unreasonable restriction on fundamental right and is arbitrary - exercise of such power by way of subordinate legislation is not permissible when rule making authority for levying penalty is limited to default “with intent to evade duty - appeal of Revenue is dismissed - E/455/2010-SM(BR) - 71/2012-SM(BR)(PB) - Dated:- 6-1-2012 - Shri D.N. Panda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. Any belated initiation of penal proceeding shall make that fatal. 2. Learned DR on the other hand, submits that there is a mandatory penalty prescribed by law and there should not be mis-construction for relieving the defaulter from penalty. He relies on the decision in the case of CCE, Mumbai v. Sunil Silk Mills - 2011 (267) E.L.T. 438 (S.C.) and further says that when compounded levy sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of constitutional provision, in Para 15 of the judgment, testing the rule making power of Government held that mere fact that without mens rea one can be punished or penalty could be imposed is not a blanket power without providing any justification. In the Indian Constitutional scheme, power of legislature is circumscribed by fundamental rights. Judicial review of legislature is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Holding that mens rea is embedded principles for consequence of law, the Rule not meeting proportionality test was struck down by Hon ble High Court holding that to be ultra vires in Para 17 of the judgment. The decision being in a writ petition, that is a command of Hon ble Court to be carried out. Revenue has no instruction as to whether the judgment has been stayed or reversed by higher Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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