- (1.) We have heard Sri R.C. Shukla, learned counsel for the appellant and Sri Arvind Shikariya holding brief of Sri Piyush Agarwal, learned counsel for the respondent-assessee.
(2.) This Central Excise Appeal has been filed raising following substantial question of law: "whether under the facts and circumstances of the case penalty equal to the amount of the duty under Rule 96ZP (3) of the Central Excise Rules, 1944 is leviable on the respondent"?
(3.) Learned counsel for the appellant submits that the substantial question of law raised in this appeal is covered by the decision of Hon'ble Supreme Court in the case of Commissioner of Customs and Excise and Vs. Kannapiran Steel Re-Rolling Mills, 2011 263 ELT 22 and Commissioner of Central Excise, Mumbai, 2011 267 ELT 438 In the light of the above judgments he submits that the penalty under Rule 96ZP (3) of the erstwhile Central Excise Rules, 1994 (hereinafter referred to as 'the Rules') is mandatory and, therefore, the Tribunal should not have imposed penalty equal to the amount of duty. He further submits that even though Rule 96ZP (3) was omitted in the year 2001 but since the show cause notice was issued to the respondent prior to the date of omission and, as such, the proceedings shall not lapse in view of provisions of Section 38A of the Central Excise Act, 1944 (hereinafter referred to as 'the Act').;