2009 (10) TMI 944

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....arned Advocate for the appellants and learned DR for the respondent. 3. Learned Advocate for the appellants state that the only challenge in the appeals is to the levy of penalty and the duty liability has already been discharged by the appellants. 4. The only issue which is sought to be canvassed is that in view of the fact that the dispute in the matter in hand related to the period from September, 1997 to December, 1997 and the penal provision in the form of sub-rule (3) to Rule 96ZO of the Central Excise Rules, 1944 came into force w.e.f. 1-5-1998, the same cannot be applied retrospectively and, therefore, imposition of penalty for whatever default had occurred in relation to the period prior to May, 1998 was bad in law.....

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....vade the payment of duty but the circumstances which could not enable the appellant to continuously manufacture the product and therefore, it is not a fit case for levy of penalty. He also submitted that there were already applications filed for abatement claim and this aspect ought to have been considered while dealing with the aspect of penalty. On the other hand, the learned SDR submitted that there is no discretion left to the authorities in the matter for imposition of penalty and hence according to the learned SDR the imposition of penalty does not warrant interference in the facts of the case. Attention is also drawn in this regard to the decision of the Apex Court in Dharamendra Textile Processors case (supra). 45. In the ma....

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....ned SDR however, submits that the proviso to sub-rule (3) of 96ZO required the arrears of duty to be paid by 10th March, 98 failing which the manufacturer would be liable to pay the penalty. 46. At the outset, it is to be noted that all these arguments which are adduced on the basis of amendment of sub-rule (3) of Rule 96ZO were not canvassed before the original authority either by the appellant or the respondent nor the impugned order disclose application of mind by the adjudicating authority in that regard. It is for the first time, and that too at the time of disposal of the appeal, the issue is sought to be raised. Nevertheless, the fact remains that the proviso requires the manufacturer to clear the dues by 30-4-1998 and at the....