TMI Blog2013 (9) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In the present it is not denied, nor there was any material to show that the factory continued production after October, 1997 - Even if the intimation was given subsequently, unless there was some material to show that the factory had run for a period beyond those two months the penalty could not be levied. In Union of India v. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA ] and State of Madhya Pradesh v. Bharat Heavy Electricals [1997 (8) TMI 252 - SUPREME COURT OF INDIA ] - Penalty under Section 11AC of the Act can be imposed only when conditions mentioned in Section 11AC exist - The authorities do not have discretion in fixing the penalty, and that where the penalty is impermissible, it cannot be lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure period can be allowed to the assessee who did not follow the prescribed procedure under Rule 96ZP(2) of the Central Excise Rules, 1944? (ii) Whether lesser penalty other than mandatory penalty equal to the amount of duty provided under Rule 96ZP(3) of the aforesaid Rules can be imposed by the Tribunal? 5. Sri R.C. Shukla, relied on a judgment of this Court in Commissioner of Customs Central Excise v. M/s. Majestic Auto Ltd. (Central Excise Appeal No. 142 of 2004, decided on 6-7-2012) [2013 (289) E.L.T. 95 (All.)] deciding the question of law - as to whether the Tribunal, in its discretion could reduce the amount of penalty as specified under Section 11AC Central Excise Act, 1944 , and held that the Tribunal had no such juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal held that the unit of the assessee was closed permanently on 31-10-1997, of which due intimation has been given by respondent, and thus the duty for only two months i.e. September and October, 1997 could be demanded from them. The short paid duty for these two months was only of Rs. 35,377/-. The Tribunal found that non-payment of differential duty was not deliberate. It was on account of closure of their unit permanently. The Tribunal partly allowed the appeal of the assessee, and dismissed the appeal of the Revenue. 10. In case, a manufacturer does not produce non-alloyed hot re-rolled steel during any continuous period of not less than seven days and wishes to claim abatement under Section 3A of the Act, he has to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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