- (1.) These appeals are directed against the judgment and order passed by the CEGAT on 11th November, 2002, exercising the discretion so far the quantification of penalty is concerned. The Commissioner of Central Excise, Mumbai (for short, 'the Commissioner') as also the Tribunal held that in the present case Rule 96ZQ is applicable but the only difference is that while the Commissioner imposed penalty of an amount equivalent to duty, which is 100 per cent, the Tribunal although held that it was a case of Rule 96ZQ of the Central Excise Rules, 1944, and was a case of penalty and exercised its discretion in scaling down the quantum of penalty to Rs. 1 lac only. The aforesaid order of the Tribunal is under challenge in these appeals on which we have heard the learned Counsel appearing for the parties.
(2.) Learned Counsel appearing for the Appellant has drawn our attention to the provisions of Rule 96ZQ and relying on the same, he has submitted that the aforesaid provision is mandatory in nature and, therefore, no discretion could have been exercised by the Tribunal, as it was done in the present case.
(3.) We may refer to the relevant provision of Rule 96ZQ, which are Sub-rules (3) and (5), which read as follows: (3) The amount of duty payable under Sub-rule (1) shall be paid, in advance, by the 5th of each calendar month. Provided that the amount of duty payable for the period from 16th December, 1998 to 31st December, 1998, shall be deposited on or before the 31st Day of December, 1998. (5) If an independent processor fails to pay the amount of duty or any part thereof by the date specified in Sub-rule (3), he shall be liable to, - (i) pay the outstanding amount of duty along with interest at the rate of twenty-four per cent per annum calculated for the outstanding period on the outstanding amount; and (ii) a penalty equal to an amount of duty outstanding from him at the end of such month or rupees five thousand, whichever is greater.;