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TMI Blog2015 (10) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... f this appeal is that there was disproportionate penalty of ₹ 1,70,000/- for the default of payment of duty of ₹ 7,235/-. It is settled principle of law that the object of the rule is certainly to safeguard Revenue, but mens-rea is basic element to judge imposition of penalty to prevent disproportionality taking into the gravity of the breach committed into consideration. Blanket levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.N. Panda, Judicial Member Shri M.Masilamani, Consultant : for the Appellant Shri B. Balamurugan, AC (AR) : for the Respondent ORDER: It is the submission on behalf of the appellant that show-cause notice was issued on 14.12.2000 proposing penalty under Rule 173Q of Central Excise Rules, 1944. Thereafter, one corrigendum was issued on 17.1.2002 proposing penalty under Rule 173 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also ignored the fact that there was no proposal in the show-cause notice for imposition of penalty under Rule 173GG of Central Excise Rules, 1944. He has also no regard to the law relating to penalty. 3.2 Without foundation in the original show cause notice to levy penalty under Rule 173GG, right to defense cannot be denied. No one can be held deterrently violating the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of legislature is circumscribed by fundamental rights. Judicial review of the legislation is permissible on the ground of excessive restriction as against reasonable restriction which is also described as proportionality test. Without mens rea, if penalty is levied that becomes arbitrary and it affects the fundamental rights. Therefore, rule making authority being subordinate to legislation no s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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