TMI Blog2009 (1) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that there was a wilful default as such. In the present case, the deficit duty had been paid along with interest even before the issuance of the show cause notice. The appellate authority had also found absence of any intention to evade payment of duty. In these circumstances, we are in complete agreement with the reasoning and findings of the learned single Judge. The orders of penalty were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It seems that concessional duty was availed in respect of goods worth Rs. 2,69,847/-, in excess of the limit. This resulted in a short payment of Rs. 4,318/- by way of excise duty, paid by the petitioner for the month of October, 1999. The petitioner, on realising that there is a short payment of duty, remitted the same on 1-3-2000 and remitted a further amount of Rs. 451/- by way of interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under Rule 173(GG) of the Rules. This was not done. Penalty at the rate of Rs. 500/- per day was imposed as per Ext. P3 order, which was affirmed by the appellate authority under Ext. P5. Hence this writ petition. 2. The learned single Judge took note of the fact that the appellate authority found that voluntary payment made by the assessee before the issuance of the show cause notice reveale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashed. 3. We heard learned counsel for the parties. We have gone through the detailed judgment of the learned single Judge. In our view, the learned Judge has correctly applied the law laid down by the Supreme Court that penalty should not be imposed, in the absence of a wilful intention to evade payment of tax or duty, as the case may be. It is trite law that even when the statute provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. We find that the writ petition was filed as early as in the year 2002. It was entertained and the learned Judge had considered the same on merits. A reading of the judgment does not suggest any such contention having been taken up before the learned Judge. We do not think it is appropriate to permit the appellants to raise that contention at this stage. For all the reasons mentioned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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