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TMI Blog2009 (8) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rajasthan in Central Excise Appeal No. 24/05 under order dated 2nd April, 2008. By the said order, the High Court has set aside the earlier order passed in this appeal by this Tribunal on 22-1-2004 and has directed for afresh decision in the appeal in accordance with law as well as on merits. 3. The challenge to the impugned order is in relation to the penalty imposed upon the appellant on account of delay in payment of duty and in exercise of powers under Rule 96-ZQ(5)(ii) of the Central Excise Rules, 1944. 4. When the matter was taken up for hearing, learned advocate appearing for the appellant sought adjournment of the hearing on the ground that, the appellant wants to move the High Court for review of the order dated 2nd April, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirm the duty and penalty liability in terms of the said provisions of law. 7. The request for adjournment, on the ground alleged, was rejected and the learned advocate was asked to proceed to address in the matter on the merits of the case. He accordingly proceeded to argue the matter on merits. Indeed, the request for adjournment was thoroughly uncalled for. Undoubtedly, the decision of the Rajasthan High Court dated 2nd April, 2008 does refer to the decision of the Madras High Court which was reported in 2004 (163) E.L.T. 28 (Mad.) = 2002 (52) RLT 644, while setting aside the order passed by this Tribunal earlier in this appeal. However, at the same time, the High Court also refers to the decision of the Supreme Court in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdly of few days and in one case it was of hardly one day and secondly that the financial difficulties faced by the appellant did not permit the appellant to clear the dues in time. Drawing our attention to the decision in the matter of C.C.E, Meerut v. Garwal Rolling Mills (P) Ltd., 2009 (240) E.L.T. 80 (T-Del), learned advocate for the appellant submitted that, sub-rule (5) cannot be construed to deny discretionary power to the authorities in the matter of imposition of penalty and the amount of penalty should be on the basis of the facts of each case. According to the learned advocate, in a case where the delay is of hardly of few days, the authorities have to exercise their discretion in imposing minimum possible penalty. He further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-12-99 1999484 0 0 0 52645 Jan-99 1-1-99 to 21-1-99 22-1-99 to 31-1-99 TOTAL 2693419 1129677 3823096 5-1-99 0 2400000/ 11-1-99 1474000/ 14-1-99 6 9 14203 13084 NIL In the month of Feb-99 March-99 the duty of Rs. 2397741/-has been debited against the refund allowed to the assessee by the Asstt. Commissioner against abatement claimed under Sec. 3A. Feb-99 1-2-99 to 4-2-99 15-2-99 to 28-2-99 TOTAL 1751000 1251000 3002000 15-2-99 613420 986580/ 18.2.99 800000/ 24-2-99 3 9 2919 7101 602000 Mar-99 2502000 15-03-99 1995200 205000/ 26.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been imposed from 1st March, 1999. The provision of law which stood w.e.f. 27th February, 1999 in relation to the obligation to pay duty in time and liability to pay interest and penalty in case of delay in payment of duty reads thus : 5. If any independent processor fails to pay the amount of duty or any part thereof by the date specified in sub-rule (3), he shall be liable to - (i) pay the outstanding amount of duty along with interest at the rate of thirty-six per cent per annum calculated for the outstanding period on the outstanding amount; and (ii) a penalty equal to an amount of duty outstanding from his or rupees five thousand, whichever is greater. 12. The provision of law, as comprised under sub-rule (5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue that, the Tribunal in Garwal Rolling Mills (P) Ltd. (supra) had held that, the authority had discretion to lower the amount of penalty and it need not be necessarily equal to the amount of duty outstanding. That was the decision based on the view taken by the Supreme Court in the case of Hindustan Steel Ltd. v State of Orissa, 1978 (2) E.L.T. J159 (S.C.), as also various High Court decisions. However, in view of the decision of the Apex Court in Dharamendra Textile Processors (supra), we do not find any case for interference in the impugned order. 14. Once the statute mandates that the assessee who fails to discharge his tax liability within the specified period or by due date, the financial constraints or even the delay of short peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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