Ajay Kumar Mittal, J. - (1.) THIS order shall dispose of a bunch of thirteen appeals bearing CEA Nos. 65 of 2011 and 26 to 28, 39, 47, 48, 50, 51, 53, 54, 58 and 59 of 2013 as according to the learned counsels for the appellant, the issue involved in these cases is identical. For brevity, the facts are being extracted from CEA No. 39 of 2013.This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 24.7.2012 (Annexure A -4) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") claiming the following substantial questions of law: - - 1. Whether merely demanding interest and imposing penalty from/on the assessee in case of violation of certain Sections/Rules, the provisions in Rules 96(ZO), (ZP) and (ZQ) permitting minimum penalty for delay in payment, without any discretion and without having regard to extent and circumstances for delay can be held to be ultra vires of the Act and the Constitution?
(2.) WHETHER the provisions in Rules 96(ZO), (ZP) and (ZQ) permitting minimum penalty for delay in payment, without any discretion and without having regard to extent and circumstances for delay can be held to be ultra vires of the Act and the Constitution, when on merits it has been decided by the same High Court that the provisions for imposing penalty under Rule 96 (ZO) are mandatory and there is no discretion vested in any authority to reduce the amount of penalty? Whether in the facts and circumstances of the case the CESTAT is correct in allowing the appeal of the party?
(3.) WHETHER the Order of the Hon'ble CESTAT merits to be set aside by this Hon'ble Court? 2. The assessee is engaged in the business of manufacture of Non -alloy Steel Ingots. It was working under the compounded levy scheme under Section 3A of the Act and was required to pay a sum of duty of Rs. 5.50 lacs in a month in two equal instalments, the first installment of Rs. 2.75 lacs latest by the 15th day of each month and the 2nd instalment of the equal amount by the last day of each month in terms of Rule 96ZO(3) of the Central Excise Rules, 1944 (in short "the Rules"). In the month of June, 1999, the assessee paid only a sum of Rs. 2 lacs in the first fortnight. In the month of July, 1999, the assessee failed to deposit any amount and, thus, failed in fulfilling its duty liability. Accordingly, the assessee was liable to pay interest @ 18% per annum on the outstanding amount of Rs. 6.25 lacs and also penalty in terms of 3rd proviso to Rule 96ZO(3) of the Rules. Further, in the month of September, 1999, the respondent paid only a sum of Rs. 2.20 lacs in the first fortnight and did not pay any amount in the 2nd fortnight. Similarly, in the month of November, 1999, the assessee did not pay any amount for the first fortnight whereas in January, 2000, it paid only Rs. 1 lac in the first fortnight. In the months of February and March, 2000, the assessee failed to deposit any amount and, therefore, rendered itself liable to pay interest @ 18% per annum on the outstanding amount of Rs. 18.80 lacs and also liable to equal penalty in terms of the Rules. Accordingly, the show cause notices dated 15.11.1999 and 27.4.2000 (Annexure P -1 Colly) for the recovery of interest at the rate of 1896 per annum on the outstanding amount of Rs. 6.25 lacs and Rs. 18.80 lacs, respectively along with penalty in terms of 3rd proviso to Rule 96ZO(3) of the Rules subject to the final decision of the Supreme Steel Industries v. Union of India, Civil Appeal No. 52 -83 of 1998, dated 21.4.1998 for penalty clause only was issued. The Assistant Commissioner vide order -in -original dated 31.3.2003 (Annexure A -2) ordered for recovery of interest and imposed equal penalty of Rs. 25.05 lacs. Feeling aggrieved, the assessee filed an appeal before the Commissioner (Appeals) who vide order dated 13.10.2004 (Annexure A -3) reduced the penalty to Rs. 25,000/ -. Against the order dated 13.10.2004 (Annexure A -3), the revenue filed an appeal before the Tribunal. The Tribunal vide order dated 24.7.2012 (Annexure A -4) upheld the said order and dismissed the appeal. Hence, the present appeal. 3. Learned counsel for the revenue submitted that though this Court has held the provisions of Rule 96ZO(3) of the Rules to be ultra vires in Bansal Alloys & Metals (P.) Ltd. v. Union of India : 2010 (260) ELT 343 (Punj. & Har.) in so far as it did not confer any discretion on the authority to levy lesser penalty. According to the learned counsel, the Special Leave Petition filed against the said decision is pending in the Hon'ble Supreme Court. 4. On the other hand, learned counsel for the assessee besides supporting the order of the Tribunal relied upon the judgment of the Gujarat High Court in Krishna Processors v. Union of India : 2012 (280) ELT 186 (Guj.) and Himachal Pradesh High Court in Shubh Timb Steel Ltd. v. Union of India : 2012 (286) ELT 495 (HP) wherein following the judgment of this Court in Bansal Alloys & Metals (P.) Ltd.'s case (supra), the issue has been decided in favour of the assessee.;