- (1.) WE have heard learned counsel appearing for the parties.
(2.) THIS D.B. Excise Appeal, preferred by the Commissioner, Central Excise, Jaipur, was admitted on the following substantial questions of law: - "1. Whether imposition of penalty under Rule 96ZO(3) of the Central Excise Rules, 1944 equal to the amount of duty not paid during the stipulated period is mandatory? 2. Whether the Tribunal committed error in reducing the penalty without adverting to the facts and circumstances of the case -
(3.) LEARNED counsel appearing for the Commissioner, Central Excise Department, submits that the question is no longer res integra, inasmuch as in Commr. Of Cus. And Cen. Exc., Coimbatore Vs. Kannapiran Steel Re -Rolling Mills, 2011 263 ELT 22, decided on 02.12.2010, a two Judges Bench of the Hon'ble Supreme Court decided the same question, following the judgment of a three Judges Bench of the Court in Union of India and Others Vs. Dharmendra Textile Processors and Others, 2008 13 SCC 369, and held as follows: - "8. Counsel submits that in the said decision what was interpreted by this Court was Rule 96 -ZQ and Rule 96 -ZO. Counsel also submits that what is applicable to the facts and circumstances of the present case is Rule 96 -ZP which is also pari materia and identical with that of Rule 96 -ZQ and Rule 96 -ZO. 9. In order to appreciate the aforesaid contentions of the counsel appearing for the appellant, we have perused the provisions of Rule 96 -ZP and compared the said provisions with that of Rule 96 -ZQ and Rule 96 -ZO. On such appreciation and comparison what we find is that the provisions of Rule 96 -ZP are pari -materia and are identical with that of Rule 96 -ZQ and Rule 96 -ZO. 10. In Dharmendra's case, this Court referred to the Union Budget of the year 1996 -1997 wherein Section 11 -AC of the Act was introduced and therein a position was made clear that there is no scope for any discretion. This Court also referred to Para 136 of the Union Budget in which reference was made to the provisions stating that the levy of penalty is a mandatory penalty and that in Notes on Clauses also the similar indication has been given. 11. After considering all the concerned aspects, this Court finally held that the plea that Rule 96 -ZQ and Rule 96 -ZO have a concept of discretion inbuilt cannot be sustained meaning thereby that the said Rules are mandatory and there is no discretion available for reducing the penalty. Provisions of Rule 96 -ZP being identical and pari materia with that of Rule 96 -ZQ and Rule 96 -ZO, the ratio of the aforesaid decision rendered by Three Judges Bench is squarely applicable to the facats and circumstances of the present case. Consequently, we allow these appeals and set aside the order passed by the High Court as also by the Tribunal and restore the order passed by the adjudicating authority, leaving the parties to bear their own costs." It is submitted that the judgment in Kannapiran Steel Re -Rolling Mills, has been consistently followed by the Hon'ble Supreme Court in the matters of levy of penalty under Rules 96 -ZO, 96 -ZP and 96 -ZQ of the Central Excise Rules, 1944 (for short, 'the Rules'). These Rules have been omitted since 11.05.2001, the penalties imposed under these Rules, however, were subject matter of consideration before the Supreme Court, and are under consideration in these appeals.;