TaxTMI 
TaxTMI 
2019 (7) TMI 954
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....learned Senior Standing Counsel for the Respondent - Commissioner of Central GST. 2. Rule. Rule is made returnable forthwith with the consent and at the request of the learned counsel for the parties. 3. The challenge in this petition is to the order dated 27.02.2018 made by the Commissioner (Appeals), Central GST and Customs, Goa. By the impugned order, the Commissioner (Appeals) has in fact upheld the order dated 18.08.2004 made by the Additional Commissioner, Customs & Central Excise, Panaji, confirming the demand made on the Petitioner and also requiring the Petitioner to pay the interest and penalty. The operative portion of the order dated 18.08.2004 reads thus : "In respect of the said assessee viz. M/s Mandovi Ispat Pvt. Ltd., M....
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....Rs. 13,80,000/- ( Rupees Thirteen Lakhs Eighty Thousand Only ) in respect of this SCN. (e) Duty demand of Rs. 9,20,000/- (Rupees Nine Lakhs Twenty Thousand Only) raised vide SCN No.F.No.SCN/AC(DIV)17/99-CX. Adj/dtd.28.06.99 is confirmed. In addition, I impose penalty under Rule 96ZO(3) of the Rules on the said assessee, amounting to of Rs. 9,20,000/- ( Rupees Nine Lakhs Twenty Thousand Only ) in respect of this SCN. (f) Duty demand of Rs. 12,70,000/- (Rupees Twelve Lakhs Seventy Thousand Only) raised vide SCN No.F.No.SCN/DC(D)-41/99-CX.Div.Adj/dtd 21.10.1999 is confirmed. In addition, I impose penalty under Rule 96ZO(3) of the Rules on the said assessee, amounting to Rs. 12,70,000/- ( Rupees Twelve Lakhs Seventy Thousand Only ) in respe....
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....reasons, she urges that the present petition may not be entertained and the Petitioner be relegated to avail an alternate remedy of appeal which is available under the said Act. 5. Mr. Doiphode, learned counsel for the Petitioner submits that one of the main contentions raised by the Petitioner was that the annual capacity of production ought to have been determined on the basis of actual power supply position and not merely the sanctioned power supply position. He points out that there is material on record to suggest that the power supply was constantly interrupted and there was no continuation of uninterrupted power supply available to the Petitioner's unit. He submits that this vital contention of the Petitioner has not been consid....
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.... of annual capacity of production has not at all been considered by the authorities. The issue as to whether the consideration is proper or not is a matter which the Petitioner, can always agitate by instituting an appeal under the provisions of the said Act. In fact, the provisions of appeal, at least in so far as this issue is concerned will be an efficacious remedy in the matter. Therefore, based upon Mr. Doiphode's first contention, we are not persuaded to adjudicate upon this issue in exercise of writ jurisdiction. In case the Petitioner desires to agitate this issue, then, it is open to the Petitioner to institute an appeal against the impugned order before the CESTAT. Such liberty is in fact hereby granted to the Petitioner. 9. ....
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....t, yet the authorities are given a discretion to levy a penalty higher than Rs. 10,000/- but not exceeding the duty leviable. In a given case, therefore, even where there is willful intent to evade duty and the duty amount comes to say a crore of rupees, the authorities can in the facts and circumstances of a given case, levy a penalty of say Rs. 25,00,000/- or Rs. 50,00,000/-. This being the position, it is clear that when contrasted with the provisions of the Central Excise Act itself, the penalty provisions contained in Rules 96ZO, 96ZP and 96 ZQ are both arbitrary and excessive. 39. A penalty can only be levied by authority of statutory law, and Section 37 of the Act, as has been extracted above does not expressly authorize the Govern....
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.... of Rule 96ZO as well as other rules which have now declared as ultra vires by the Hon'ble Apex Court in Shree Bhagwati Steel Rolling Mills (supra). Similarly, the Commissioner (Appeals) was also not justified in upholding such levies despite the fact that the decision of the Hon'ble Apex Court in Shree Bhagwati Steel Rolling Mills (supra) specifically cited before it. To that extent therefore, the impugned orders warrant interference. 13. The perusal of the memo of appeal instituted by the Petitioner before the Commissioner (Appeals), indicates that this contention was specifically raised by the Petitioner. However, without proper consideration of this contention, the Commissioner (Appeals) vide impugned order, has proceeded to up....