CCE Vs. NARAYANA INDUSTRIES

JUDGEMENT

(1.) BOTH these appeals filed by the Revenue arise from different orders in Appeal No. 142/2003 dated 27.10.2003 and No. 144/2003 (M -I) dated 27.10.2003 passed by the Commissioner of Central Excise (Appeals) Chennai by which the Commissioner (Appeals) has reduced the mandatory penalty imposed under Rule 96ZO -P(3)(ii) of the CE Rules, 1944, to Rs. 5,000/ -, in each case.

(2.) THE facts and the issue involved in both the appeals are identical and the arguments advanced by both the sides are also common. Hence both the appeals are disposed of by this common order.

(3.) HEARD Shri A.A. Jayachandran, learned JDR for the Revenue. He has referred to the grounds of appeal and submitted that the Commissioner (Appeals) has erred in placing reliance on the Judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. BHEL while reducing the penalty to Rs. 5,000/ -. It was submitted that the law as proposed in Rule 96ZP(3) of the CE Rules, 1944 is mandatory in nature. He further submitted that in the present case, the adjudicating authority having determined that the assessee had not paid the duty payable before the due date, does not have any discretion to consider imposing lesser penalty than what is warranted in the rule itself, Further the reliance, of the Commissioner in the Judgment of the Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar v. UOI while holding that Section 11AC is pari materia to the provisions of Rule 96ZP(3) is not correct. The Revenue has also relied upon the order of the Tribunal in the case of Allied Ferromelt Pvt. Ltd. v. Commissioner of Central Excise, Pune -I1 reported in 2000 (249) ELT 237 (Tri -Mumbai) wherein it was held that "Rules, 96ZP and 96ZO are a relaxation of the procedure that then existed of duty having to be paid before each consignment of goods. They required payment on the 15th of each month and at the end of the month for the proceeding fortnight. They require payment on the 15th of each month and at the end of the month for the proceeding fortnight. There is therefore, no justification for leniency".