TMI Blog1984 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty and ₹ 4,750/- special excise duty by TR-6 No. Nil dated 17th Nov. 1982 on the State Bank of India, Naktala Branch and the same was entered in their P.L.A. vide entry at Sl. No. 1245 and 1246 twice. Consequently, there were clearances of 3228 pcs. electric fans between 22nd Jan. 1982 and 25th Nov. 1982 without payment of Central Excise duty to the tune of ₹ 89,340.10 p. However, the said Company deposited the amount of ₹ 95,900/- on 8th December, 1982 when the mistake was detected. A show cause notice dated 9th Feb., 1983 was issued to the appellant and in reply the appellant denied the charges framed against them and a penalty of ₹ 500/- was imposed upon them by the Addl. Collector. Being aggrieved from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1982 due to mistake by the dealing clerk. 2. As soon as the mistake was detected, we have deposited a sum of ₹ 95,000/- basic and ₹ 4,750/- special under TR-6 No. nil dated 8-12-1982. 3. In this connection, we would like to mention that such type of mistake had never occurred in our PLA before. We have taken suitable action against the clerk concerned and the checking system has been made more stringent so that this type of mistake may not happen in future. 4. In view of the above, we have placed before you the fact of our bona fide mistake for your kind perusal and would be grateful if you could kindly condone the lapse. Thanking you, Yours faithfully, for THE JAY ENGINEERING WORKS LTD. Sd/- Illegible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the return is claimed to be due to want of care on the part of assessee and there is an element of deliberation in it. It is true that where the incorrectness of the return is claimed to be due to want of care on the part of assessee and there is no reasonable explanation forthcoming from him for such want of care, the court may in a given case infer deliberateness and the return may be treated as a false return. But, where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to brand the return as `false return inviting penalty. In the said judgment, it was also held that it is elementary that Section 43 of the General Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities voluntarily before detection. As such there is complete absence of the element of mens rea. In view of the Supreme Court judgment and other judgments cited above, the penalty of ₹ 500/- so imposed should be quashed. 4. In reply, Shri A.K. Saha, the learned Sr. D.R. has referred to Rule 173A(a) of Central Excise Rules, 1944 and has pleaded that the intention is not necessary. He has also referred to the judgment of Indoglass Pvt. Ltd. Ors. v. U.O.I. of the Bombay High Court reported in 1982 E.L.T. 135 (Bom.). He has referred to para 15 of the said judgment wherein it was held that the petitioners have undoubtedly contravened the provisions of the Act and the Rules and the imposition of penalty and fine cannot be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department and also had written a letter to the Revenue Authorities on 8th Dec., 1983, which has been reproduced above. It is a settled law that penalty proceedings are quasi-criminal proceedings and no penalty is leviable unless the element of mens rea is established. In this case, I am satisfied that there is complete absence of element of mens rea and no penalty is leviable. I very respectfully follow the observation of the Hon ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa. I quash the order as to the imposition of penalty of ₹ 500/-. The Revenue is directed to refund the amount of penalty within two months from the date of this order, after necessary verification as to the payment. 7. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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