9911796707
TMI Blog1992 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Central Excise, Bhubaneswar to decide the question whether the decision taken by the Assistant Collector in his two memos dated 5-12-1985 and 4-12-1985 addressed to M/s. Orissa Industries Limited, Lathikata, who are the respondents in the present proceedings was legal and proper and whether the same liable to be set aside. As the Collector (Appeals) rejected the applications, the present appeals have been filed. As the issues involved are the same in both the appeals, this common order is being passed disposing of both the appeals. 2. Shri S. Dutt Majumder, learned Senior Departmental Representative attended the hearing on behalf of the appellant Collector. None, however, represented the respondents. No letter was received from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the submission of RT 12 for the month and no deliberate evasion has been alleged or brought out in the application. In the circumstances, he has held that the dropping of the proceedings by the Assistant Collector does not call for any interference from his end and accordingly rejected the application (appeal) and upheld the impugned memorandum. 5. In the relative appeal before us, it has been urged that the finding of the Collector (Appeals) that as there was no deliberate evasion of duty as the party had paid the amount much before the submission of the RT 12 for the month, penalty was not imposable is not correct. It is further contended that under Rule 173Q(1)(a) intention to evade payment of duty need not be there for the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at any time and pay the duty due by debit to the account before removal of the goods. It is clear that these provisions have not been complied with by the respondents. There is no provision that removals can be effected and funds provided in the P.L.A. before the filing of the RT 12 returns. These are filed every month and if it would suffice to make the deposit before filing the said returns, an assessee can get up to one month s time within which he can replenish his P.L.A. after effecting removal of goods without payment of duty. This is not a permissible situation. The absence of mens rea is not a factor for proceeding under Rule 173Q(1)(a). In the circumstances, the appeal deserves to be allowed. We, therefore, set aside the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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