Commissioner of Central Excise Vs. Krishna Industries - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. 1. we have heard the parties. it has been vehemently contended by dr. j.p.gupta, counsel appearing for the central government, that the order of the appellate authority reducing the penalty is without jurisdiction as section 11-ac of central excise act (1 of 1944) provides for imposition of penalty equal to the duty, so determined.2. we have heard on this aspect. both the counsel have cited number of authorities for the purposes of disposing of this appeal. it is suffice to refer two judgments. in the case of sony india ltd. v. commissioner of central excise, delhi reported in : 2004(167)elt385(sc) , the relevant paragraph is as follows:7. now the other aspect that has to be considered is whether penalty imposed under section 11-ac and interest under section 11-ab was justified in the circumstances that arise in the case. the commissioner had imposed penalty to an extent of rs. 2,07,64,870.16 equivalent to the duty that was payable by the appellant. under section 11-ac of the central excise act, the manner in which the whole transaction went on makes it very clear that the appellant became liable to pay duty under the circumstances which warrant application of the provisions of section 11a(i) and, therefore, we think if the authorities chose to impose penalty equivalent to duty payable by the appellant, we do not think, there is any justification for us to interfere with the same. the decisions adverted to by the learned counsel have different complexions and bearing. these cited cases arose in the circumstances where certain actions had been taken in bonafide belief or the parties were under bonafide doubt as to under what tariff item they had to pay tax in question or where the. assessee was under bonafide belief that his company was not required to be registered as dealer under the sales tax act. in the present case, earlier the appellant was paying duty at the rate of 18% ad valorem on the maximum retail price. it is only after 2-6-1998 change was sought by the appellant by not printing the price on the packed goods by removing the same to their depots from their factory in order to claim that the packed goods had not been priced at the time of their removal from the factory and gifts were offered by the appellant to indicate that the consideration in the sale transaction was not solely the price. these factors, we think, were rightly taken note of by the authorities and the penalty imposed need not be considered in the present proceedings.3. the other judgment is 2005 air scw 1829 (commissioner of central excise, chadigarh v. dabur (india) ltd. and anr.). the only question raised for consideration is whether the tribunal has power to reduce penalty under section 11-ac.4. the supreme court in the aforesaid cases did not make any observation with regard to the ratio that the tribunal has no jurisdiction to reduce penalty. it all depends upon the circumstances of the particular case. as a matter of fact, the appellate authority has considered the very circumstance with regard to the bonafide nature of claim and reduced the penalty. in our view, in the light of the observations, made by the supreme court in the aforesaid cases, the impugned order does not suffer with any infirmity. the appeal is, thus, dismissed.