TMI Blog2016 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... truck down as ultra vires nothing survives. Finally, Hon’ble Supreme Court in the case of Commissioner of Central Excise vs. Angadpal Industrial Pvt. Ltd. [2015 (10) TMI 1844 - SUPREME COURT ] has clearly held that vires of Rule 96ZQ was contested and if upheld nothing survives in the matter. - Decided against revenue - Appeal No: E/1264 & 1272/2005 - A/85107-85108/16/EB - Dated:- 2-12-2015 - SHRI MV RAVINDRAN, MEMBER (JUDICIAL) AND SHRI CJ MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri V.K. Shastri, Asstt. Commissioner (AR) For the Respondent : Shri R.B. Pardeshi, Advocate ORDER PER: M.V. RAVINDRAN: These two appeals are filed by the Order-in-Appeal No: PII/BKS/571-572/2004 dated 09/12/2004 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the entire order is bad on the ground of lapsing of the aforesaid provisions. Inviting attention to the earlier order passed by this court disposing of the petition, it was pointed out that the court had interfered only with the penalty part of the order by observing that the remaining portions are not interfered with, for the simple reason that the petitioners have preferred appeals for challenging the other portions of the orders levying duty and interest. 12.1 The learned counsel invited attention to the decision of the Supreme Court in the case of Union of India v. Krishna Processors (supra) to submit that the Supreme Court has remitted the matter for deciding the question of vires of clause (ii) of sub-rule (5) of Rule 96ZQ o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Commissioner of Income-tax, Delhi v. Atul Mohan Bindal, (2009) 9 SCC 589, wherein it has been held that the decision in Dharamendra Textile (supra) must be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the Section, once the Section is applicable in a case the authority concerned would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. 12.3 It was pointed out that Section 3A of the Act is a special provision and provides for a different procedure than Section 3 of the Act which is the charging provision. Under Section 3A of the Act which is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and imposition of penalty cannot be compared to liability to tax as imposition of penalty is different. The object is that the defaulter and the assessee cannot be put in the same class. 12.5 It was further submitted that the compensatory aspect of imposing interest for delayed payment cannot be a ground for non-levy of penalty. Referring to the decision of this High Court in the case of Ambuja Synthetic Mills v. Union of India, 2004 (175) E.L.T. 85 (Guj.), and more particularly paragraph 5 thereof, it was submitted that this aspect of the matter stands concluded by this court in the said decision wherein it is held that on reading clause (i) of sub-rule (5) of Rule 96ZQ, it appears that 36% interest per annum is imposed as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty has a direct nexus with enacting Section 3A of the Act. It was submitted that this court in the case of Ambuja Synthetic Mills v. Union of India (supra) has verified the scheme and found it valid. Reliance was also placed upon the decision of the Supreme Court in the case of Assistant Collector of Central Excise v. Ramakrishnan Kulwant Rai, 1989 (41) E.L.T. 3 (S.C.). 12.6 Insofar as Section 37 of the Act is concerned, each sub-section is required to be applied independently. It was submitted that the sub-section (1) prevails over the subsequent sub-sections. Under sub-section (1) of Section 37 the Central Government is empowered to make rules to carry into effect the purposes of this Act and as such can frame any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd imposition of penalty is different from the scheme under Section 3A of the Act and that there are different means for levy of penalty. In the circumstances, the provisions of Rule 96ZQ(5) (ii) of the Act are not violative of Article 14 or of any other provision of the Constitution or the Act and as such, deserve to be sustained. 5. It was also informed by both the sides that an identical view has been taken by the hon ble High Court of Madras in the case of Beauty Dyers vs. Union of India, though both the sides are unable to produce a copy of the said judgment. We find that this Tribunal, following these two judgments had in many cases held that penalty is not imposable under Rule 96ZQ. Hon ble High Court of Bombay in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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