2014 (11) TMI 493 - HC - Central Excise

Imposition of penalty - Demand of differential duty - Whether the order passed by the second respondent dated 20-2-2003 has any force after the omission of Section 3A and Rule 96ZP with effect from 11-5-2001 - Held that - decision of the Division Bench of the Gujarat High Court reported in Krishna Processors v. Union of India - 2012 (11) TMI 954 - GUJARAT HIGH COURT was rendered on 16-3-2012 and the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) has not been brought to the notice of the Division Bench of the Gujarat High Court. Admittedly, there is no challenge to the validity of the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) at the instance of the appellant. In such circumstances, by virtue of the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) the omission of Section 3A of the Act by Section 121 of the Finance Act, 2001 is deemed to be valid and therefore, the contentions urged on behalf of the appellant does not merit acceptance. Rules 96ZQ, 96ZP and 96ZO of the Rules provides for mandatory penalty, provision for imposition of mandatory penalty even for slightest bona fide delay without discretion is beyond the purpose of legislation. It was further held that the provisions in the Rules permitting minimum penalty without any discretion and without having regard to extent and circumstances for delay are ultra vires the Act and the Constitution of India. penalty under Section 11AC is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section. there is no scope for exercise of discretion by the Tribunal in the matter of imposing penalty. Consequently, we do not find any reason to interfere with the order of CESTAT, confirming the order passed by the original authority - Following decision of Bansal Alloys & Metals Private Limited v. Union of India 2010 (11) TMI 83 - PUNJAB & HARYANA HIGH COURT - Decided against assessee.

Issues Involved:
1. Authority of the second respondent to pass the adjudication order after the omission of Section 3A.
2. Validity of the order passed by the second respondent after the omission of Section 3A and Rule 96ZP.
3. Tribunal's decision to ignore a Co-ordinate Bench's judgment regarding Rule 96ZO.
4. Imposition of penalty under Rule 96ZP(3) of the Central Excise Rules, 1944.

Detailed Analysis:

Issue 1: Authority of the second respondent to pass the adjudication order after the omission of Section 3A

The appellant contended that after the omission of Section 3A of the Central Excise Act with effect from 11-5-2001, the second respondent had no authority to pass the adjudication order. This aspect was not considered by the CESTAT. The appellant relied on the decision of the Gujarat High Court in Krishna Processors v. Union of India, which held that after the omission of Section 3A, no new proceedings could be initiated or continued under the omitted rules.

Issue 2: Validity of the order passed by the second respondent after the omission of Section 3A and Rule 96ZP

The appellant argued that the order passed by the second respondent levying penalty had no force of law after the omission of Section 3A and Rule 96ZP. The respondent countered this by citing the Finance (No. 2) Act, 2009, which retrospectively validated actions taken under the omitted provisions. The court noted that the Gujarat High Court's decision did not consider the Finance (No. 2) Act, 2009, which validated actions taken under the omitted rules and sections, making the appellant's contention untenable.

Issue 3: Tribunal's decision to ignore a Co-ordinate Bench's judgment regarding Rule 96ZO

The appellant argued that the Tribunal ignored the decision of a Co-ordinate Bench in Kundil Alloys Private Limited v. CCE, which struck down proceedings under Rule 96ZO. However, the court noted that the Finance (No. 2) Act, 2009, validated actions taken under the omitted rules, and the Tribunal's decision was consistent with this validation.

Issue 4: Imposition of penalty under Rule 96ZP(3) of the Central Excise Rules, 1944

The appellant contended that the imposition of penalty under Rule 96ZP(3) was not mandatory and that the Tribunal had the discretion to impose a lesser penalty. The Tribunal reduced the penalty from Rs. 33 lakhs to Rs. 10 lakhs, considering the penalty to be too harsh. The court referred to the Supreme Court's decision in Chairman, SEBI v. Shriram Mutual Fund, which held that once a contravention is established, the penalty must follow. The court concluded that there was no scope for discretion in imposing the penalty and upheld the Tribunal's decision. However, the court granted the appellant the liberty to move the CESTAT for appropriate relief concerning the reduced penalty.

Conclusion:

The Civil Miscellaneous Appeal was dismissed, and the court upheld the Tribunal's decision, confirming the order passed by the original authority. The court also noted that the Finance (No. 2) Act, 2009, validated the actions taken under the omitted provisions, making the appellant's contentions untenable.

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