TMI Blog2014 (5) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be decided on its own facts and circumstances. - Following the decision in Bansal Alloys & Metals Pvt. Ltd's case [2010 (11) TMI 83 - PUNJAB & HARYANA HIGH COURT], decided against the revenue. - CEA No. 77 of 2005 (O&M) - - - Dated:- 23-4-2014 - Ajay Kumar Mittal And Jaspal Singh,JJ. For the Petitioner : Mr. Sunish Bindlish, Advocate For the Respondent : None ORDER Ajay Kumar Mittal, J. 1. This order shall dispose of a bunch of three appeals bearing CEA Nos. 77 of 2005, 63 and 129 of 2006 as according to the learned counsel for the appellant (s), the issue involved in these cases is identical. For brevity, the facts are being extracted from CEA No. 77 of 2005. 2. This appeal has been preferred by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest and also imposed penalty of an equal amount under Rule 96ZO (3) of the Rules. Feeling aggrieved, the assessee filed an appeal before the Commissioner (Appeals) who vide order dated 27.2.2004 (Annexure A-2) reduced the penalty to Rs. 30,000/-. Against the order dated 27.2.2004 (Annexure A-2), the revenue filed an appeal before the Tribunal. The Tribunal vide order dated 15.2.2005 (Annexure A-3) dismissed the appeal. Hence, the present appeal. 4. Learned counsel for the revenue submitted that though this Court has held the provisions of Rule 96ZO(3) of the Rules to be ultra vires in Bansal Alloys Metals Pvt. Ltd. v. Union of India, 2010 (260) ELT 343 (P H) in so far as it did not confer any discretion on the authority to levy lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 16. For the above reasons, we hold that the impugned provision to the extent of providing for mandatory minimum penalty without any mens rea and without any element of discretion is excessive and unreasonable restriction on fundamental rights and is arbitrary. Moreover, 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 . 17. The writ petitions of the assessees are allowed and impugned provisions in Rules 96(ZO), (ZP) and (ZQ) permitting minimum penalty for delay in payment, without any discretion and without having regard to extent and circumstances for delay are held to be ultravires the Act and the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitting penalty for delay in payment, without any discretion and without having regard to the extent and circumstances for delay to be ultra vires the Act and the Constitution. 7. Himachal Pradesh High Court in Shubh Timb Steel Ltd. v. Union of India 2012 (286) ELT 495 (HP) in view of the judgment in Bansal Alloys Metals Pvt. Ltd's case (supra) while deciding the issue in favour of the assessee had held in the following terms:- 7. This issue was discussed threadbare by a Division Bench of the Punjab and Haryana High Court in the judgment cited above wherein after discussing the entire law, the Court held as follows:- 15. Applying the above principles to the present situation, the provision for minimum mandatory penalty equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, be fixed at 100% of the excise leviable. Each case must be decided on its own facts and circumstances. There may be cases where the delay is only of a day or two and the authorities must be given the discretion to impose the penalty which they feel is reasonable in the facts and circumstances of the case. 8. In view of the above, the substantial question of law is answered accordingly. Consequently, all the appeals are dismissed. CEA No. 63 of 2006 (O M) Ajay Kumar Mittal, J. Delay of 130 days in refiling the appeal is condoned. For orders, see CEA No. 77 of 2005 (Commissioner, Central Excise Commissionerate, Ludhiana v. M/s K.C. Alloys Steel Castings, Ludhiana). Ajay Kumar Mittal, J. Delay of 439 days in refilin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
