TaxTMI 
TaxTMI 
2014 (1) TMI 1212
X X X X Extracts X X X X
X X X X Extracts X X X X
....s falling under chapter, sub-heading 7206.90 of Schedule to CETA, 1985. The said goods were notified for the purpose of levy of duty of excise under the provisions of section 3A of Central Excise Act, 1944, based on Annual Capacity of Production (ACP) in the manner as prescribed under the provision of Rule 96ZO of Central Excise Rules (CER). Sub-rule 1 of Rule 3 of the Induction Furnace Annual Capacity Determination Rules, 1997 specifies the manner in which the aforesaid ACP is to be determined. 3. Based on the declaration submitted by the assessee, the Commissioner, Central Excise, Jamshedpur, vide his order dated 23.3.1998, fixed the ACP as 9600 MT in respect of one furnace of the assessee. Since the assessee opted, vide its letter dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Nov.'99 to Mar.'2000 5. After offering opportunity to the assessee, the Commissioner, Central Excise, Jamshedpur, vide Order-in-Original No.93-96 & 97/Commissioner/2000 dated 24.11.2000, confirmed an amount of Rs.83,87,097/- as duty short paid by the assessee during the period June, 1998 to September, 1998 and for the period March, 1999 to March, 2000 under the provision of Rule 96ZO(3) of CER'44 read with Section 11A(2) of the CEA'44. By the said order, the Commissioner imposed penalty of an identical amount of Rs.83,87,097/- under Rule 96ZO(3) of the CER'44 and directed to verify the payment particulars to determine the amount of interest @ 18% per annum. 6. Being aggrieved by the Order-in-Original No.93-96 & 97/Commissioner/2000 dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Central Excise Act seeking reference of the matter to this Court and also for setting aside the order dated 28.10.2002 passed by the CEGAT in Appeal No.ER-307/2001 reducing the amount of penalty imposed by the Commissioner of Central Excise. Being aggrieved by the order dated 28.10.2002 of the CEGAT, the assessee also preferred W.P (T) No.5528/2003. As against the order dated 28.10.2002 passed in Appeal Nos.ER-306-307/2001, the Revenue preferred Tax Case No.5/2003. By a common order dated 2.11.2007, W.P (T) No.5528/2003 filed by the assessee and Tax Case No.5/2003 filed by the Revenue were dismissed. This Court, in the said order dated 2.11.2007, observed that consequently there is no reason to answer the question raised in Tax Case N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt in Civil Appeal No.8410 of 2009 and the Hon'ble Supreme Court disposed of the same, holding that the matters are covered by the judgment rendered in the case of Dharamendra Textile Processors & Ors. reported in (2008) 13 SCC 369 and giving liberty to the assessee(s) to challenge the validity of Rule 96ZO before the High Court. Learned counsel further submitted that earlier the matter has attained finality and the issue involved in the present Tax Case is a covered matter and therefore, the instant Tax Case is liable to be dismissed. 11. We have carefully considered the submissions and also the common order passed by the Division Bench of this Court in Tax Case Nos.5 and 7 of 2003 and W.P(T) No.5528/2003. 12. In the case of Dharamendr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was referred to a larger Bench. 4. It was noted that in some cases the assessee had challenged the vires of Rule 96-ZQ(5) and the Gujarat High Court held that the said Rule incorporated the requirement of mens rea. The Division Bench clarified that if the larger Bench takes a view to say that the penalty leviable under the said clause is mandatory, it is still open to the assessee to challenge the vires of Rule 96-ZQ(5). 5. During the course of hearing, learned counsel for the parties agreed that a similar issue is involved in respect of Rule 96-ZO." 13. Observing that the levy of penalty is a mandatory penalty and there is no scope for any discretion and rejecting the plea that Rules 96ZQ and 96ZO have a concept of discretion in-built, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... understood to mean that though the application of Section 11-AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the Authority concerned would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11-A. That is what Dharamendra Textile decides. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only insofar as Section 11-AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision." 1....