TaxTMI 
TaxTMI 
2001 (5) TMI 314
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....itted written submissions under letter dated 28-5-2001. They have submitted that the duty of excise amounting to Rs. 96,000/- involved in respect of 50 bags of 'Sarvapriya Shankar Brand Gutkha' cleared from the factory during the period from 19-1-1994 to 14-5-1994 without payment of duty had been deposited by them even before the issue of show cause notice; that in such a situation penalty is not imposable in view of the following decisions :- (i) Netplast Ltd. v. C.C.E., Allahabad, 2000 (122) E.L.T. 88 (Trib.) (ii) Siemens Ltd. v. C.C.E., Aurangabad, 1999 (34) RLT 831 (CEGAT) (iii) Tata Engg. & Locomotive Co. Ltd. v. C.C.E., Patna, 1994 (72) E.L.T. 882 (Trib.)....
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....ot be a circumstance for not imposing penalty on them. He placed reliance on the decision in the case of Zunjarra Bhikaji Nagarkar v. U.O.I., 1999 (112) E.L.T. 772 (S.C.) wherein it was held by the Apex Court that "apart from the offending goods which are liable to confiscation the person concerned with that shall be liable to penalty upto the amount specified in the Rule 173Q. It is difficult to accept the arguments of the appellants that levy of penalty is discretionary. It is only the amount of penalty which is discretionary." Finally he submitted that considering the value of goods removed without payment of duty and the amount of duty involved, penalty of Rs. 15,000/- imposed by the Commissioner is not harsh at all. 4. We have ....
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....ase, relied upon by the appellants, there was some shortage of inputs and as the appellants reversed the Modvat credit to that extent under Rule 57F(1), imposition of penalty was not upheld. Shortage of some quantity of inputs cannot be compared with the removal of finished goods without payment of duty over a period of four months. In Re : Dhampur Sugar Mills case, the excisable goods were cleared on 18-5-1987 without payment of duty and the assessee paid the duty on 20-5-1987. Thus the facts are completely different. Similarly facts in TELCO's case, 1994 (72) E.L.T. 882 are different as in that matter the appellants had availed of Modvat credit and removed final products without payment of duty to their another unit for captive consumptio....
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....ur months; they did not disclose the same as neither entry of production and clearance was made in RG-I Register nor the transactions were reflected in Monthly Returns (RT-12). 5. Moreover, the Apex Court has interpreted the provisions of Rule 173Q in Z.B. Nagarkar's case, supra, and has held that the word 'liable' has been used in Rule 173Q which means, as per Black's Law Dictionary, responsible; chargeable, answerable, compellable to make satisfaction, compensation, or restitution.....obligated. The Supreme Court held that "It is difficult to accept the argument of the appellant that levy of penalty is discretionary. It is only the amount of penalty which is discretionary. Both things are necessary: (1) goods are liable to confisc....