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TMI Blog2011 (2) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was not justified in reducing the penalty to ₹ 5,000/-. Appeal allowed. - Tax Appeal No. 449 of 2005 - - - Dated:- 22-2-2011 - Harsha Devani and H.B. Antani, JJ. Shri Y.N. Ravani, for the Appellant. None, for the Respondent. JUDGMENT In this appeal under Section 35G of the Central Excise Act, 1944 (the Act), the appellant, Commissioner of Central Excise Customs, Vapi has challenged the order dated 12-5-2004 passed by the Customs, Excise Service Tax Appellate Tribunal (the Tribunal). 2. While admitting the appeal vide order dated 18-1-2008, the Court had formulated the following substantial question of law : Whether penalty imposed under Rule 96ZQ(3) of erstwhile Central Excise Rules, 1944, can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28-2-2000, the adjudicating authority imposed penalty of ₹ 3,77,779/- (Rs. 1,66,667/- for the duty payable on 15-8-1998 which was paid on 31-8-1998, ₹ 1,66,667/- for the duty payable on 28-2-1999 which was paid on 1-3-1998, and ₹ 44,445/- for the duty payable on 30-9-1999 which was paid on 1-10-1999) under the third proviso to Rule 96ZO(3) of the Rules. Interest at the rate of 18% for delayed payment was also ordered under the third proviso to Rule 96ZO(3) of the Rules. Being aggrieved, the assessee preferred appeal before the Commissioner (Appeals) who vide order dated 30-10-2001 agreed with the findings arrived at by the adjudicating authority and dismissed the appeal. The assessee carried the matter in second appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Union of India v. Dharamendra Textiles Processors and Others, (2008) 306 ITR 277 (SC) = 2008 (231) E.L.T. 3 (S.C.) whereby the Court has held that there is no concept of discretion inbuilt under Rules 96ZO and 96ZQ of the Rules, 1944 and as such, the same is required to be quashed and set aside and the question is required to be answered in favour of the Revenue. 7. Despite service of notice, there is no appearance on behalf of the respondent-assessee. 8. The facts are not in dispute. Penalty has been levied on the respondent assessee under the third proviso to Rule 96ZO(3) of the Rules which provides that where a manufacturer fails to pay the whole of the amount payable for any month by the 15th day or the last day of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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