Law:

Section:

Additional Duty-- —Monthly instalments of Central Excise Duty-Failure to deposit-Show cause notice why additional duty be not recovered-Challenge to-Under Rule 5 (3) of Excise Duty on Production Capacity (Sugar) Rules, 1972, monthly instalment is to be paid by last date of each month and if not done so, manufacturer shall pay additional duty-No action under Section 37 (3) of Central Excise and Salt Act, 1944 has been taken in this case—Held: Additional duty has already been prescribed under Rule 5 (3) of Rules 1972 which is not penalty, and it does not need any adjudication as a penalty.            [P.228JAB JUDGMENT Abdul Qadeer Chaudhry, J--This appeal by leave of the Court is directed against the judgment dated 22.4.1989 of the High Court. 2. The facts of the case are that the appellant failed to deposit the monthly instalments of Central Excise Duty on the basis of production capacity for the financial years 1972-73, 1973-74, 1974-75 and 1977-78. The Assistant Collector of Central Excise, Faisalabad, issued notice to the appellant on 30.11.1978 to show cause why additional excise duty should not be recovered from him under rule 10 of the Central Excise Rules, 1944. The appellant replied to the show cause notice. The Assistant Collector on 12.1.1979 dismissed the representation of the appellant holding that they were liable to pay the amount as additional excise duty under rule 5 (3) of the Production Capacity (Sugar) Rules, 1972. This order was maintained upto the Central Board of Revenue. His Constitution Petition was dismissed by the High Court by the impugned judgment. The High Court observed that the additional duty due or short paid was recoverable under rule 10 of the Central Excise Rules. 1944 and Section 33 is not applicable. The learned counsel for the appellant raised the same contention which has been properly dealt with by the High Court. The main thrust of the argument of the learned counsel is that the demand made by the respondent is a penalty and unless it is adjudicated upon by a competent authority authorised under Section 33 of the Act, no demand could be made from the appellant. This contention has no force.…

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