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TMI Blog2001 (5) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... excise amounting to Rs. 96,000/- involved in respect of 50 bags of Sarvapriya Shankar Brand Gutkha cleared from the factory during the period from 19-1-1994 to 14-5-1994 without payment of duty had been deposited by them even before the issue of show cause notice; that in such a situation penalty is not imposable in view of the following decisions :- (i) Netplast Ltd. v. C.C.E., Allahabad, 2000 (122) E.L.T. 88 (Trib.) (ii) Siemens Ltd. v. C.C.E., Aurangabad, 1999 (34) RLT 831 (CEGAT) (iii) Tata Engg. Locomotive Co. Ltd. v. C.C.E., Patna, 1994 (72) E.L.T. 882 (Trib.) (iv) Sunsilk Dyeing Printing Mills Pvt. Ltd. v. C.C.E., Vadodara, 1999 (105) E.L.T. 56 (Trib.) (v) Bhavani Mills Limited v. State of Tamil Nad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offending goods which are liable to confiscation the person concerned with that shall be liable to penalty upto the amount specified in the Rule 173Q. It is difficult to accept the arguments of the appellants that levy of penalty is discretionary. It is only the amount of penalty which is discretionary. Finally he submitted that considering the value of goods removed without payment of duty and the amount of duty involved, penalty of Rs. 15,000/- imposed by the Commissioner is not harsh at all. 4. We have considered the submissions of both the sides. The appellants have not disputed the removal of excisable goods during a period of almost four months without accounting the same in the statutory records and without payment of duty. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be compared with the removal of finished goods without payment of duty over a period of four months. In Re : Dhampur Sugar Mills case, the excisable goods were cleared on 18-5-1987 without payment of duty and the assessee paid the duty on 20-5-1987. Thus the facts are completely different. Similarly facts in TELCO s case, 1994 (72) E.L.T. 882 are different as in that matter the appellants had availed of Modvat credit and removed final products without payment of duty to their another unit for captive consumption under Notification No. 217/86-C.E. and they were anticipating that the benefit of said Notification would eventually be extended to interplant transfer of goods with retrospective effect. The Tribunal felt that the leniency displa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Rule 173Q in Z.B. Nagarkar s case, supra, and has held that the word liable has been used in Rule 173Q which means, as per Black s Law Dictionary, responsible; chargeable, answerable, compellable to make satisfaction, compensation, or restitution.....obligated. The Supreme Court held that It is difficult to accept the argument of the appellant that levy of penalty is discretionary. It is only the amount of penalty which is discretionary. Both things are necessary: (1) goods are liable to confiscation and (2) persons concerned is liable to penalty. Even in cases where mens rea is not present, the Supreme Court has held in Gujarat Travencore Agency v. C.I.T., 1989 (42) E.L.T. 350 (S.C.) as under :- Unless there is something in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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