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TMI Blog1988 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the confiscation of certain goods seized by the Central Excise Officers and the imposition of fine in lieu of confiscation and the penalty imposed against M/s. Straw Products Ltd., one of the appellants (hereinafter referred as the First Appellants) is justified or not. Insofar as the question of rate of duty is concerned, the position, as stated by Shri Gopal Prasad, Ld. Consultant, is that the appellants agreed that they are not entitled to the benefit of Notification No. 46/83-C.E. They accept the department's view in this regard. The rate of duty is not therefore an issue before us. 3. M/s. Straw Products Ltd. filed a classification list No. 3/83, dated 30-4-1983 effective from 1-5-1983 in respect of straw board and Kraft. board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants would not have availed of the lower rate. Besides, Shri Gopal Prasad submitted, the first appellant executed B-16 bond under which any shortfall in collection of duty could have been easily made up by the department. Thus, the revenue was never in jeopardy. Shri Gopal Prasad also submitted that the appellants paid the differential duty on 30-5-1983, well before the issue of show cause notice on 13-9-1983. He also submitted that imposition of penalty in these circumstances was not justified and relied upon the Supreme Court's judgment in Hindustan Steel Ltd. v. State of Orissa reported in 1978 E.L.T. (J 159). 5. Shri Chakraborty did not dispute the facts but reiterated the findings of the Collector justifying the confiscation and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellants that they were entitled to Notification No. 46/83-C.E. That is why they filed a revised classification list. 7. We have also taken note of the case law cited by Shri Gopal Prasad (Hindustan Steel Ltd. v. State of Orissa report in 1978 E.L.T. (J 159). We note that the Supreme Court in this judgment ordered that ".......penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, "or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so..........". We are convinced that in this case the appellants M/s. Straw Products Ltd. did not act in deliberate di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation, or penalty, even where this word is used alongwith the words "shall be". Thus, where an American Revenue Statute declared that for the commission of a certain act, a vessel, "shall be liable to forfeiture, it was held that these words do not effect a present absolute forfeiture but only give a right to have the vessel forfeited under due process of law. Similarly, it has been held that in Section 302, Indian Penal Code, the phrase "shall also be liable to fine" does not convey a mandate but leaves it to the discretion of the Court. convicting an accused of the offence of murder, to impose or not to impose fine in add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see can clear the goods paying duty on the basis of the revised classification list filed, pending the approval of the same by the proper officer. Rule 173CC makes a specific provision for clearance of the goods subject to the conditions, and proviso set out thereunder when the same are manufactured for the first time, but does not in terms as specifically state that an assessee who has filed a revised classification list in terms of Rule 173B(4)(c) can arose clear the goods, based on the revised classification list pending its approval by the proper officer. Now the procedure for filing of the classification list and approval thereof be it a revised classification list in terms of Rule 173B(4)(c) or otherwise is the same. Under Rule 173B(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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