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TMI Blog1997 (4) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... breach. 3. Further, a penalty was imposable only in cases where the mala fide intention of the person was established and it was not imposable unless the Department is able to sustain its demand notice which was under challenge and in this respect, he would like to cite the judgments in the cases of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. (J 159) and Collector of Central Excise v. H.M.M. Ltd. reported in 1995 (76) E.L.T. 497 (S.C.). 4. Learned DR drew attention to the impugned order-in-appeal and in particular to para 13 thereof. He read it out to show that the learned Collector has recorded the reasons for imposing penalty in this paragraph and in the operative portion, while allowing the benefit of the Modv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot done so. 9. Learned Counsel stated, in reply, that these judgments also emphasise that the discretion of the authority should be exercised judicially on a consideration of all the relevant circumstances. 10. I have considered the above submissions. I observe that it is incorrect to say that the Collector has not passed a speaking order on the point. The Collector has given reasons for retaining penalty as rightly pointed out by the learned DR and relevant para 13 reads as follows :- Coming to the penalty, the appellant s plea is that the credit was taken on the basis of the original documents and that these were lost/misplaced after they were checked/verified by the audit party but before they were returned to the Range Supdt. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to para 7 of the said judgment to show that penalty will not ordinarily be imposed unless the party had either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation and the discretion of the authority is required to be exercised judicially and on a consideration of all the relevant circumstances. The real emphasis in the Apex Court s judgment in this case is with regard to consideration of all the relevant circumstances and learned Collector has taken those circumstances into account and learned DR has also pointed out the danger of misuse of the documents, if they were not returned for defacement. 13. At the same time, penalty is also required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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