Full Judgment
3. The contention Mr. R. Viswanathan, Senior Executive of the appellant are these. The duty amount involved is Rs. 1,80,000/- approx. whereas the appellant paid Rs. 500 crores annually. In the larger perspective a sympathetic view should be taken.
4. I do not see how these contentions are of any assistance to the appellant. I am not aware of any provision of law which lays down the assessee not to pay duty in proportion to the duty that it paid. I would be surprised if this appellant or any other assessee forgoes such short supply by its suppliers on the ground that it only represents small fractions by the suppliers and pays the supplier for such supply not received. If the duty, according to the appellant, is nominal, so is the penalty particularly after it has been reduced by the Commissioner (Appeals). It would make little difference to it if the appellant, who can pay duty to the extent of Rs. 500 crores annually to pay Rs. 70,000/- towards penalty. As the departmental representative points out the duty was only paid after the department came to know of its nonpayment. In my view, in such a situation, there is no justification for even reducing the penalty. The decisions of the Tribunal which the appellant cites have to be considered with regard to the facts of each case. None of this is authority for the proposition that merely because duty has been paid before issue of notice, penalty is not imposable. There is no support in law for such a proposition.
The decisions of the Tribunal had no doubt taken into account the bona fide action of an assessee in setting right of the short payment on its own. Such a situation cannot arise where an assessee, the appellant in this case, paid the duty consequent upon the departmental officers' action.