TMI Blog1992 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... rate whereby he confirmed the demand for duty issued vide two show cause notices dated 15.12.1988 and 9.6.1989 in so far as the allegation of excess filling of their retail packings of Ultramarine Blue with marked weight 30 gms. was concerned. In addition, a penalty of ₹ 5,000/- was also imposed by him. Shri D.R. Kohli, learned Consultant appearing for the appellants submitted that the allegation against them of having evaded duty by filling their retail packs, marked as containing 30 gms, with 32 gms. was totally untenable as the duty payable is on ad valorem basis and not on the basis of weight. He explained that only in order to comply with the stringent requirements of the Weights and Measures Act and in order to ensure that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submissions of both the sides. We have gone through the record. The stand that by packing the exact marked weight in each pack, the appellants could have produced more packs and hence paid more duty than what they had actually done does not appeal to us. This is a hypothetical question. If duty was on specific rate basis, the fact that they packed more quantity and cleared such increased quantity would have assumed revenue significance. In the present situation, however, whether the quantity in a unit pack was 30 gms. or 32 gms. the realisation of price is the same. The charge of misstatement with reference to the quantity packed loses its sting in view of assessment being linked to value. Such over-packing has also been explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry liability to pay duty is there which is not discharged, the element of mens rea is not required for imposition of penalty as laid down by the Supreme Court in Gujarat Travancore Agency v. Commissioner of Income Tax 1989 (42) ELT 350. But here, It is not a case where duty that should have been paid has not been, as already observed by us. In that view of the matter the penalty imposed is not sustainable. We, therefore, allow the appeals and set aside the order imposing penalty and demanding duty. In the circumstances, the Cross Objection filed by the Department seeking enhancement of the penalty imposed gets dismissed. The operative part of the order was announced in the Open Court after the hearing. - - TaxTMI - TMITax - Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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