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TMI Blog2013 (1) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... rule to the extent of providing mandatory minimum penalty without any mens rea and without any element of discretion is excessive and unreasonable restriction on fundamental rights and is arbitrary. On the basis of overall facts and circumstances of the case which did not indicate the intention to evade payment of excise duty was justified in reducing the penalty. In favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... irst instalment falling short by Rs. 1.75 lacs. The respondent failed to deposit any amount during the months of February and March, 2000. Accordingly, the respondent rendered himself liable to pay interest on outstanding amount of Rs. 18.08 lacs and also liable to pay equal amount of penalty in terms of 3rd proviso to Rule 96ZO(3) of the Rules. 5. The respondent was served with show cause notice dated 15-11-1999 and 27-4-2000 for recovery of interest on the aforesaid default in payment of excise duty and it was also proposed to impose penalty upon the respondent under Rule 96ZO(3) of the Central Excise Rules, 1944. 6. The show cause notices were adjudicated by the jurisdictional authority vide common order-in-original No. 05-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-appeal and restore the order-in-original. 9. Notice to the respondent has been received back undelivered with the report that address is not correct. No other address of the respondent is available on record, therefore, the respondent cannot be served with the notice without undue delay and expense. Accordingly, we are constrained to proceed ex parte order against the respondent. 10. We have considered the submission made by ld. AR and perused the record as also the judgment relied upon by him. At the outset, we may note that in neither of the judgment relied upon by the AR for the appellant vires of Rule 96ZO was put to test. In the matter of Union of India v. Dharmendra Textile Processors reported in 2008 (231) E.L.T. 3 (S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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