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TMI Blog1991 (10) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice. 2. Shri Raghavan, the learned counsel for the appellant, contended that the issue in the present appeal is with reference to the propriety of the penalty levied under the impugned order. The learned counsel urged that the impugned order itself says that the show cause notice does not allege intentional evasion and, therefore. Rule 173Q(1)(d) is not attracted. He further submitted that during the visit of the officers on 28-3-1990 they found a photograph of shuttle winding machine falling under Chapter T.I. 68 of the erstwhile Central Excise Tariff and since the Department felt that the duty should have been paid before the clearance of the goods in question, the appellant paid duty of Rs. 1,14,669 on 17-4-90. Subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al revenue and the plea of bonafides should be construed only in this factual background of non-payment of substantial amount of duty at the relevant time when the duty ought to have been paid. Delayed payment of duty would not by itself absolve the assessee of the liability to penalty under law. 4. I have considered the submissions made before me. The question is with reference to the leviability of penalty. The appellant is not disputing the fact of its duty liability and duty in a sum of Rs. 7,82,760 had been admittedly paid though voluntarily by the appellant. The fact remains that this duty was paid only consequent on the visit of the authorities on 28-3-1990 and finding the clearance of a shuttle winding machine falling under Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment. The show cause notice also does not allege or attribute any mala fides or intention to evade duty against the appellants. Keeping all these factors in mind, I hold that non-payment of duty at the proper time though not permissible under law would not call for a punitive treatment of the kind which would be called for in other cases where goods are cleared without payment of duty. No doubt, the Special Bench of the Delhi Tribunal has in the facts of that case held that imposition of penalty was not called for and that is in appreciation of the evidence in that case. Therefore, keeping all the relevant facts in mind, I am of the view that a nominal penalty for procedural infractions would meet the ends of justice, since the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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