TaxTMI 
TaxTMI 
2014 (4) TMI 1056
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.... proviso to sub-rule (3) of Rule 96ZO of the Central Excise Rules, 1944 which is in the nature of imposition of mandatory penalty and the adjudicating authority/appellate authority is bound to impose a penalty equivalent to outstanding amount of duty or Rs. 5,000/- whichever is greater? (b) Whether CESTAT can exercise discretion in the matter of imposing penalty and reduce the same without such discretion being conferred under relevant rules? (c) On the present issue, there is no authorization pronouncement of any High Court or Supreme Court and which issue occurs regularly as such the substantial question of law as this aspect needs to be decided by this High Court in the present CEA? ....
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....al Order Nos. 250-258/2005, dated 18-2-2005, by referring the judgment of the Hon'ble Supreme Court in State of Madhya Pradesh v. BHEL - 1998 (99) E.L.T. 33 (S.C.) and the judgment of the Madras High Court in Beauty Dyers v. UOI and Others - 2002 (52) RLT 636 (Mad.) had dismissed the appeal confirming the orders of the Commissioner (Appeals). In the above factual background, the substantial questions of law, which are set out above, said to have been arisen from the orders of the CESTAT are referred to this Court. 4. The sheet anchor argument of the learned counsel for the Department is that there is no dispute with regard to finding of fact that the respondent had defaulted in payment of duty and thereby violated the Induction Furn....
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.... need to be taken into consideration, leaving it open for the respondents to canvass about the correctness of the view taken in the above judgment. However, he would also point out that in Dharamendra Textile case (supra) the validity of Rule has not been decided and in fact the same was left open for the reason that the Hon'ble Supreme Court had noticed. Some of petitioners in the Batch had challenged the validity of Rule and it is pending consideration before the Court and also before various High Courts. He would further point out that this judgment of the Supreme Court was rendered on 29-9-2008 and thereafter, the Division Bench of Punjab and Haryana High Court in Bansal Alloys And Metals Private Limited v. Union of India - 2010 (260) E....
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....sons for delay are either due to holding or temporary financial crisis. 7. The authorities below had accepted the fact that there is an impossibility of compliance of payment of duty or due date on account of 15-11-1998 being a Sunday. In other words, the authorities below had consistently found that there was imminent justifiable reason and there was a genuine cause for the respondents inability to pay the duty amount on the due date. Be that as it may, in view of the judgment of the Supreme Court that imposition of penalty in terms of Rule 96ZO is held to be mandatory, now, the question for consideration would be whether the demand in the present cases would be sustainable, when the relevant rule, which was the basis for demand, h....
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....but outside it. The same legal position will flow though there is no such previous declaration by a competent court, but a charging provision is in fact and in law ultra vires the Legislature. Any assessment made on the basis of such a void provision cannot be a decision under the provisions of the Act. Briefly stated, the procedural machinery under the Act can be utilized only to decide disputes that arise under the substantive provisions of the Act which are not ultra vires. 21. The proposition that an authority constituted under the Act cannot, unless expressly so authorized, question the validity of the Act or any provisions thereof, is sound and is also supported by authority. 8. The issue raised in the present cases is....