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TMI Blog2015 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has not challenged the impugned order of the Tribunal and, therefore, penalty as levied by the Tribunal cannot be interfered. - Decided against the assessee. - Central Excise Appeal No. - 178 of 2015 - - - Dated:- 4-9-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani, JJ. For the Appellant : K.C. Sinha, R. C. Shukla For the Respondent : B. J. Agrawal, P. Agrawal ORDER (Per: Surya Prakash Kesarwani,J.) 1. We have heard Sri R.C. Shukla, learned counsel for the appellant and Sri Arvind Shikariya holding brief of Sri Piyush Agarwal, learned counsel for the respondent-assessee. 2. This Central Excise Appeal has been filed raising following substantial question of law: whether under the facts and circumstances of the case penalty equal to the amount of the duty under Rule 96ZP (3) of the Central Excise Rules, 1944 is leviable on the respondent 3. Learned counsel for the appellant submits that the substantial question of law raised in this appeal is covered by the decision of Hon'ble Supreme Court in the case of Commissioner of Customs and Excise and Vs. Kannapiran Steel Re-Rolling Mills 2011 (263) E.L.T. 22 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1999 the Central Excise Authorities found that the respondent deposited the excise duty after few days of the due dates, along with interest. On these facts, the show cause notice was issued by the Superintendent of Central Excise Range IV Muzaffar Nagar dated 29th February, 2000 requiring the respondent to show caue that why penalty equal to the amount of duty be not imposed under Rule 96ZP (3) of the Rules for delayed payment of duty. Another show cause notice dated 18th April, 2000 was issued due to delay of few days in depositing the amount of duty for the months of January, February and March, 2000. The said show cause notices were adjudicated and an order in original dated 13.11.2003 was passed by the Assistant Commissioner of Division I Meerut imposing penalty of ₹ 13,30,000/- under Rule 96ZP (3). Being aggrieved the appellant as well as the respondent assessee preferred appeals before the Commissioner (Appeals) Customs and Central Excise-Meerut-I. The present appellant has filed appeal for enhancement of penalty to the extent of the amount of delayed payment of duty while the respondent assessee filed the appeal to strike down the penalty. The appeal of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, pay a sum equivalent to one-twelfth of the amount calculated at the rate of ₹ 300/- multiplied by the annual capacity in metric tonnes, as determined under sub-rule (3) of rule 3 of the Hot Re-rolling Mills Annual Capacity Determination Rules, 1997, and the amount so paid shall be deemed to be full and final discharge of his duty liability for the period from the 1st day of September, 1997, to the 31st day of March, 1998, or any other financial year, as the case may be, subject to the condition that the manufacturer shall not avail of the benefit, if any, under the proviso to sub-section (3) or under sub-section (4) of the section 3A of the Central Excise Act, 1944 (1 of 1944): Provided that in respect of the non-alloy steel hot re-rolled products, manufactured or produced by a re-rolling mill in which the nominal centre distance of the pinions in the pinion stand is up to 160 millimetres, the sum payable under this sub-rule shall be calculated as if fo the letters and figures Rs. 300/- , the letters and figures Rs.150/- were substituted: Provided further that for the month of September, 1997, the manufacturer may pay the amount due for the said month by the 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any such rule with intent to evade payment of duty then such goods shall be liable confiscation and the manufacturer, producer or licencee shall be liable to penalty not exceeding the duty leviable on such goods or ₹ 10000/- which ever is greater. Thus penalty not exceeding ₹ 5000/- could be provided under Sub Section (3) while the rules framed under Sub Section 4 could provide for penalty for contravention of the provisions of any rule with intent to evade payment of duty, for a sum not exceeding duty leviable on such goods or ₹ 10000 which ever is greater. Thus by rules framed under Sub Section 4, minimum penalty of ₹ 10000 and a maximum penalty not exceeding the duty leviable on such goods could be provided. Rule 96ZP (3) has been framed to ensure that payment of monthly excise duty is made by a manufacturer within the time prescribed under the rules and as a deterrent penalty has been provided for delayed deposit of duty. 9. Rule 96ZP (3) has to be harmoniously read with the rule making power of the central government under Sub Section (4) of Section 37 of the Act which provides the minimum and maximum penalty subject to the condition that there s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of three show cause notices. 14. In the appeal, the Commissioner (Appeals) Customs and Central Excise, Meerut-I reduced the penalty following certain orders/judgments of Hon'ble Supreme Court. The appellate authority observed that the respondent assessee could not discharge their duty liability in time due to financial constraints and they deposited the entire duty and paid interest much before issuance of show cause notice. Briefly on these findings the penalty was reduced by the appellate authority to ₹ 1,50,000/-. The Tribunal by the impugned order has increased the penalty to ₹ 3 lacs observing that the penalty confirmed by the Commissioner (Appeals) is too low. 15. In the memorandum of appeal there is no allegation that the findings of the authorities that the amount of duty could not be deposited by the respondent-assessee due to financial constraints and that there was no intention to evade payment of central excise duty; is incorrect or perverse. The adjudicating authority has itself recorded a finding of fact that there was no intention to evade the payment of central excise duty on the part of the respondent-assessee. No material has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew the proceedings are saved by the provisions of Section 38 of the Act. A Full Bench of this Court in the case of Simbhauli Sugar Mill Ltd. Vs. Union of India 2006 (205) E.L.T. 141 (All.) held as follows: 19. The section validates any action taken under any such rule at any time between 28.2.1944 and 11.5.2001, when it received the assent of the President and Section 38A was for all purposes to be deemed to be on the Statute book, notwithstanding anything contained in any judgment or order of any court. It legalizes any action taken under any rule under the Act in spite of its amendment, supersession repeal or rescission. A joint reading of Sections 131 and 132 leads to the only conclusion that any proceedings initiated under Rule 10 would continue irrespective of the fact that it was omitted without any saving clause in either Rule 10 or Section 11A and also irrespective of the judgment of the Court, as they are saved by Section 38A. 23.The aforesaid note, which is in the nature of the object which is sought to be achieved by the insertion, has some significance to help us to decipher the intention sought to be achieved by the insertion. Rule 10 which laid down the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, after examining several dictionaries held it to signify 'repeal and replacement'. Black's Law Dictionary and Random House Dictionary also define it as such. The word 'delete' has been used interchangeably with 'omit' in Kolhapur Sugarcane (supra), and has been defined in Black's Law Dictionary as- to erase, remove or strike out, while Random House Dictionary defines it as- strike out, remove, erase or expunge. 'Rescind' has been defined in Black's Law Dictionary - as annul, cancel or abrogate from the beginning, revoke, while Random House Dictionary describes it as to abrogate, revoke or repeal. It is oft repeated and applied that words take their colour from the company they keep this broad linguistic rule or practice applies even when no general words are used. They should be understood together, as Stamp J. observed in Dourne v. Norwich Crematorium Ltd. (1967) All pp 576 as P. 578. English words derive colour from those which surround them. Sentences are not mere collection of words to be taken out of the sentence defined separately by reference to the dictionary or decided cases, and then put back into the sentence with t ..... 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