TMI Blog2006 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... of "Bush". On this account, demand of duty of Rs. 73,042/- with equal amount of penalty under Section 11AC of the Central Excise Act, 1944 (for short, 'the Act') and of Rs. 10,000/- under Rule 173Q of the Central Excise Rules (for short, 'the Rules') was confirmed by the adjudicating authority. The Commissioner (Appeals) affirmed the finding of the adjudicating authority for inclusion of value of "Bush" into the value of "Pulsator" for determining assessable value. However, the demand of duty was set aside on the ground of limitation. 3. The Tribunal set aside the finding of the Commissioner (Appeals) and held that the demand was within limitation as extended period of limitation raising the duty demand was rightly invoked. While confirming the duty demand, penalty was reduced to Rs. 10,000/-. 4. Learned counsel for the Revenue submitted that Section 11 AC of the A lays down that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of (fraud collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the Rules with intent to evade payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to the date on which the Finance Act, 2000 receives the assent of the President; (2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person." 5. Learned counsel for the Revenue points out that the statute does not provide for any discretion in the matter of quantum of penalty and the Tribunal erred in not imposing penalty equal to the duty determined. Learned counsel for the Revenue relied upon following decisions: (i) Zunjarrao Bhikaji Nagarkar Vs. Union of India, 1999 (32) RLT 125 (SC)'=1999 (112) ELT 772 (SC) (ii) Sony India Limited Vs. Commissioner of Central Excise, Delhi, 2004 (62) RLT 602 (SC)=2004 (167) ELT 385 (SC). 6. In Zunjarrao's case (supra), proceedings were initiated against the petitioner for not proceeding against an assessee with a view to favour him. The petitioner had taken the plea that levy of penalty was not mandatory. In para 32, it was held that once situation warranted levy of penalty, there was no discretion in the matter. In Sony India Limited's case (supra), penalty unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Navrang Dyeing's case (supra) merely follows Ambuja Synthetics case (supra). 11. Judgments relied upon by the counsel for the parties are not directly relevant for deciding the question whether there was element of discretion in the quantum of penalty where circumstances warrant imposition of penalty and statute lays down the extent of liability. However, the principles for. deciding the issue are well settled. 12. While penalty is liable to be imposed only if there is an element of mensrea i.e. intention to evade tax, quantum of penalty depends on a statutory provision. 13. In Maneka Gandhi Vs. Union of India, AIR 1978 SC 597, it was held that mere prescribing a procedure for depriving life or liberty of a person did not meet the requirement of Article 21, as such procedure has to be fair, just and reasonable. By process of interpretation, "due process" clause has come to be incorporated in Article 21 of the Constitution. 14. It was held in Sunil Batra Vs. Delhi Administration, AIR 1978 SC 1675:- "For what is punitively outrageous, scandalizirigly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Arts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that where minimum sentence was prescribed, hearing on the question of sentence was not necessary. (iv) Hem Chand Vs. State of Haryana, AIR 1995 SC 120 Minimum sentence under Section 304-B IPC was upheld. (v) State of Madhya Pradesh Vs. Babbu Barkare alias Dalap Singh, AIR 2005 SC 2846 State of MP Vs. Bala alias Balaram, AIR 2005 SC 3567 State of MP Vs. Sheshrao, AIR 2005 SC 4417. It was held that minimum sentence for rape under Section 376 IPC could not be reduced. (vi) In Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, AIR 2001 SC 147. It was observed that object of providing minimum sentence is to provide for a deterrent sentence. (vii) Jagdish Prasad and another Vs. State of UP, AIR 1999 SC 1539 Minimum sentence under PFA Act, 1954 was upheld. (viii) State of J K Vs. Vinay Nanda, AIR 2001 SC 611, The above list is not exhaustive. 18. As far as the object of providing for minimum sentence in any statute reference to a judgment of Hon'ble the Supreme Court in Madhukar Bhaskarrao Joshi's case (supra) is relevant, wherein it was held as under: "18….. Parliament measured the parameters for such condign punishment and in that process wanted to fix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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