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TMI Blog2010 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. However, from January to March, 2000 there was delay in tendering the duty. Show cause notice was issued on 16th August, 2004. Obviously, it was within the period of five years. Being so, the decision of the Punjab & Haryana High Court in the matter of Bhawani Castings (P) Ltd. (2010 -TMI - 77052 - PUNJAB & HARYANA HIGH COURT) cannot be of any help to the respondents to contend that the Department was not entitled to initiate action for imposition of penalty. In relation to the period from January to March, 2000 there was default in payment of duty amounting to Rs. 15 lacs. Obviously, therefore, the penalty imposable was only to the tune of Rs. 15 lacs and in that regard the authorities below had no discretion. - E/271/2006 & E/CEA/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially based on the decision of the Apex Court in the matter of Union of India v. Dharamendra Textile Processors, reported in 2008 (231) E.L.T. 3 (SC), whereby it was ruled that there was no discretion to the officer as regards the quantum of penalty to be imposed under Rule 96ZQ and 96ZO of the Central Excise Rules, 1944 as also under Section 11AC of the Central Excise Act, 1944. Secondly, it is the contention on behalf of the Department that there is no outer limit prescribed for invocation of penal provisions except that the same should be within the period of limitation from the date of the default known to the Department and in that regard reliance is sought to be placed in the decision of the Tribunal in the matter of Bhawani Castings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel ingots classifiable under Chapter 72 of the Central Excise Tariff Act, 1985. With the introduction of Compounded Levy Scheme on non-alloy iron steel products under Section 3A of the Central Excise Act, 1944 read with Rule 96ZO(3) of the Central Excise Rules, 1944, the respondents opted for the benefit under the said Scheme and accordingly the fortnightly duty liability of the respondents was fixed at Rs. 2,50,000/- which was payable on or before the last date of the each fortnight to which it pertains to. 6. From August, 1998 till December, 1999, the respondents tendered the said duty on the last date of each of the fortnight to which it pertained to along with necessary challans for crediting the amount under the cheques to the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erseas Electronics Ltd. (supra) read with the decision of the Division Bench in the matter of GA Danieli India Ltd. (supra), it is clear that payment of duty by cheques takes effect from the date of delivery of such cheques to the authority empowered to collect the duty. It is not in dispute, in the matter in hand, that the cheques were presented to the bankers who were duly empowered to collect the duty. It is not the case that such cheques were dishonoured. Nor is the case that on the day the cheques were tendered, the Respondents had no sufficient amount to the credit of their account in the bank. Being so, merely because there was delay in clearing the cheques on account of completion of banking procedure, that would not affect date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, the principle regarding reasonable period would not be attracted in strict sense in cases where there is failure to comply with the statutory obligation relating to the payment of revenue. The said decision of the Tribunal, however, has been disagreed by the Punjab Haryana High Court while setting aside the said order and by answering the question as to whether the Tribunal was right in holding that the proceedings for imposition of penalty could be initiated even after the period of five years. In other words, the Punjab Haryana High Court has held that, where no statutory period has been prescribed for initiating proceedings for imposition of penalty under Rule 96ZO(3), then the proceedings should be initiated within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Wilful concealment is not an essential ingredient and there being no scope for any discretion, the levy of penalty has to be considered as mandatory. Undoubtedly, Rule 96ZO(3) specifically provides for imposition of penalty equal to the amount of duty outstanding. In the case in hand, in relation to the period from January to March, 2000 there was default in payment of duty amounting to Rs. 15 lacs. Obviously, therefore, the penalty imposable was only to the tune of Rs. 15 lacs and in that regard the authorities below had no discretion. Considering the same, the Department is justified in contending that the Commissioner (Appeals) could not have quashed the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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