TaxTMI 
TaxTMI 
2014 (6) TMI 198
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....e Tribunal, New Delhi (hereinafter referred to as "the Tribunal") claiming the following substantial questions of law:- "(i) Whether the Tribunal was correct in imposing penalty under Rules 96ZO(3) of an amount equal to the duty liability without considering the reasons and quantum of delay? (ii) Whether the Tribunal was correct in holding that penalty of an equal amount is mandatory under Rule 96ZO(3) and discretion for lesser penalty is not available under the said Rule?" 2.3 The assessee is a manufacturer of Non-alloy Steel Ingots and billets and was to debit an amount at the rate of Rs. 750 per metric ton at the t....
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.... appeals by a common order. The Tribunal held that for the period prior to January, 2000, the cheques for the payment had been tendered within the prescribed period but the discrepancy if any is of the late clearances of the cheques by the Bank. Therefore, for the period prior to January 2000 there has been no delay in making the payment of duty as the date on which the cheques has been presented is to be considered as the date of payment and not the date on which the cheque has been encashed. Accordingly, no penalty can be imposed for the period prior to January, 2000. For the period from January, 2000 to March, 2000, the Tribunal has held that there has been a delay in making the payment. The Tribunal, thus, imposed penalty under Rule 96Z....
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....t any element of discretion is beyond the purpose of legislation. The object of the rule is to safeguard the revenue against loss, if any. The penalty has been provided in addition to interest. Mere fact that without mens rea, an can be punished or a penalty could be imposed is not a blanket power without providing for any justification. In the Indian Constitutional scheme, power of legislature is circumscribed by fundamental rights. Judicial review of legislation is permissible on the ground of excessive restriction as against reasonable restriction which is also described as proportionality test. Conclusion 16. For the above reasons, we hold that the impugned provision to the extent of providing for mandatory minimum penalty without....
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....erals (P.) Ltd. v. Union of India 2010 (260) ELT 343 wherein the court has held that the provision for minimum mandatory penalty equal to the amount of duty even for slightest bona fide delay without any element of discretion is beyond the purpose of legislation. The object of the rule is to safeguard the revenue against loss, if any. The penalty has been provided in addition to interest. Mere fact that without mens rea, an assessee can be punished or a penalty could be imposed is not a blanket power without providing for any justification. The court, accordingly, held the provisions of Rules 96ZO, ZP and ZQ permitting penalty for delay in payment, without any discretion and without having regard to the extent and circumstances for delay....