TaxTMI 
TaxTMI 
2005 (3) TMI 376
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the jurisdictional Commissioner of Central Excise on the basis of the Annual Capacity of Production of the re-rolling mill. During the said period, they were liable to pay duty on their products for a calendar month on or before the 10th day of the month. The department on perusal of the monthly RT 12 returns filed by the respondents found that, for various periods, the monthly payments of duty by the parties were beyond the due dates. On the basis of this finding, show cause notices were issued to the parties proposing to impose penalties on them under Rule 96ZP of the Central Excise Rules, 1944. The original authority imposed various penalties on the appellants, each being equal to the amount of duty belatedly paid by the assessee con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for under Rule 96ZP(3) where payment of duty was defaulted by a manufacturer working under Compounded Levy Scheme. The following decisions were cited by ld. SDR : (i) Allied Ferromelt Pvt. Ltd. v. CCE - 2002 (149) E.L.T. 237. (ii) Pee Aar Steels Pvt. Ltd. v. CCE - 2004 (170) E.L.T. 406. It was also pointed out by ld. SDR that the ld. Commissioner (Appeals) had fixed the same quantum of penalty for each of the assessees arbitrarily, regardless of the varying extents of default committed by the different assessees in the matter of payment of duty. In other words, according to ld. SDR, the discretion, if any, of the Commissioner (Appeals) had not been exercised in a reasonable manner. Fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... submitted by SDR, which gives a comparative account of the extent of default of payment of duty by the assessees. I have also considered the case law cited before me. The short question arising in all these appeals has already been stated. 7. The provisions for penalty for default of payment of duty by a manufacturer of hot re-rolled products working under the erstwhile Compounded Levy Scheme was contained in the 4th Proviso to sub-rule (3) of Rule 96ZP of the Central Excise Rules, 1944. This proviso reads as under :- "Provided also that where a manufacturer fails to pay the whole of the amount of duty payable for any month by the 10th day of such month, he shall be liable to pay :- (i) the outstandin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess sold local goods to other registered dealers and have failed to make a statement referred to in sub-section (1) of Section 7 it shall be presumed that he has facilitated evasion of Entry Tax and accordingly he shall be liable to pay penalty equal to 10 times the amount of Entry Tax payable on such goods. Their Lordships observed that there could be several good reasons why a registered dealer might have failed to make the statement required to be furnished by him by sub-section (1) of Section 7 and that it could not be the intention of the legislature that an accidental omission committed or non-furnishing of the statement for a good and valid reason must necessarily lead to the presumption that the registered dealer had the intention o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....decision in Pee Aar Steels (supra) wherein it has been held that the Tribunal is not competent to reduce the penalty imposed under the 4th Proviso to Rule 96ZP(3). It is noticed that the Hon'ble Supreme Court's ruling in BHEL's case was not brought to the notice of the High Court in Pee Aar Steels (supra). Therefore, the Supreme Court's ruling must prevail. This view was taken by this Bench in Final Order No. 998/2004 and Final Order Nos. 525-526/2004 cited by ld. Advocate. 8. The question now is whether the lower appellate authority has been reasonable in exercising of its discretion in the matter of determination of penalty. The penalty is for the offence of having defaulted payment of duty. It appears from the charts produced by SDR t....