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TMI Blog2011 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants in terms of the said proviso, merely on the basis of the said provision of law which came into force subsequent to the issuance of show cause notice - thus penalty imposed in relation to the delay in payment of sum of Rs. 1,35,349/- is reduced to Rs. 20,000/-, therefore assessee would be liable to pay the duty to the tune of Rs. 1,35,349/- alongwith the interest thereon and penalty of Rs. 20,000/- besides amount of Rs. 12,500/- with interest thereon and penalty of equal amount - partly in favour of assessee. - 409 of 2005 and 475 of 2005 - 411-412/2011-EX(PB) - Dated:- 21-4-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri S. Yadav, Advocate for the Appellants. Shri I. Beg, Authorized Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d November 1999 came to be issued. After adjudication proceedings, the demand for Rs. 1,35,349/- was confirmed alongwith the interest and equal amount of penalty as also the demand for Rs. 12,500/- alongwith interest and equal amount of penalty. Being aggrieved by the said order, the appellants carried the matter in appeal before Commissioner (Appeals) solely on the ground that it was settled law that in case of short payment of duty on account of adjustment of the amount of abetment, the question of imposition of penalty does not arise and that the delay in payment of duty was on the ground of pendency of abetment claim and difficulty experience by the appellants in running the manufacturing process in the factory. The contention was rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 237 (Tri. Del.). 6. On the other hand, the DR has placed reliance in the decision of the Tribunal in the matter of Hindustan Processors Ltd. vs. CCE, Jaipur reported in 2009 (243) E.L.T. 372 (Tri. Del.), while distinguishing the decision in Mittal Alloys vs. CCE, Ludhiana (supra) case based on the observations made therein in para 46 of the decision. 7. As far as short payment of Rs. 12,500/- is concerned, records nowhere disclose any explanation forthcoming from the appellants in that regard. Only contention which is sought to be raised is about the difficulty in running the manufacturing process. Certainly that cannot be a justification for non-payment of duty or part thereof which an assessee is liable to pay in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of 1st May 1998. 10. In Mittal Alloys vs. CCE, Ludhiana (supra) case, the Division Bench of Tribunal to which one of us was party (Shri Justice R.M.S. Khandeparkar, President) it was held that : this proviso was not applied to the matter in hand at the original stage and on the basis of such amended provision, the revenue wants to saddle the appellants with the penalty. The same cannot be allowed unless it is established by the department that the appellants had opportunity to know the amended notification. Being so, in our considered opinion, mere failure on the part of the appellants to clear the dues by 30/4/98 in terms of such proviso could not warrant levy of penalty as the said amendment had come into force on 1/5/98 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the period prior to 1st May 1998 commencing from September 1997 by 30th April 1998, he could be subjected to the 100% penalty in relation to the amount remaining outstanding as on 1st May 1998. 13. The question, however, in the case in hand is whether in the facts and circumstances of the case such a penalty in terms of the said proviso could be attracted. It is settled law that the liability of the assessee is to be ascertained on the basis of the claim made by the department in the show cause notice issued to the assessee. As regards the claim relating to the month of October and November 1997 was made under show cause notice dated 24th April 1998. Undisputedly on the said day, department had no occasion to demand penalty in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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