Law: Central Excise Act, (I of 1944)

Section: 3

(Central Excises Act (I of 1944)]......S 3-B---"Shall pay" and "shall be liable to pay" ---Distinction and connotation---Clear distinction exists between the phrase 'shall pay' and `shall be liable to pay'---Use of the phrase `shall pay' makes it mandatory on the person to pay the amount while the use of the words 'he shall be liable to pay' gives a discretion to the concerned functionary of the Department to impose additional tax or waive the same totally if in his opinion, the circumstances so required---Use of the words `he shall be liable to pay' in S.3-B of the Act also vests in the Adjudicating Officer, the discretion to levy or forego the additional sales tax in case of failure of person to pay the sales tax keeping in view the facts and circumstances of the case and the reason for non-payment. Shamroze Khan and another v. Muhammad Ameen PLD 1978 SC 89 ref. (b) Central Excises Act (I of 1944)--- ----Ss.36-C & 3-B---Central Excise Rules, 1944, Rr.53, 10 & 210--­S.R.O. 546(I)/94, dated 9-6-1994---S.R.O. 552(I)/89 dated 3-6-1989--­Levy of additional duty---Claim of the Department was that if a person who under Central Excises Act, 1944 was liable to pay tax but failed to pay the same for any reason, he was duty bound to pay additional tax at the rate stated in S.3-B of the Act and no officer of the Excise Department had any discretion to waive or reduce the additional tax stated in the said section---Validity---Fact of late payment was conceded by the assessee but the enforcement of Central Excise duty under S.3(b) was contested by it on the ground that the late payment made due to circumstances beyond its control as out of the 100% of the total income of the assessee, it was paying 93% to Government of Pakistan in shape of development surcharge and excise duty thus leaving a balance of only 7% for the assessee and it was not at all possible for the assessee to pay the excise duty from this 7% as the major buyer (WAPDA) of the respondent had defaulted to make payment to the assessee-Considering that delay was beyond the control of the assessee and was not due to any wilful act of the assessee, Tribunal had rightly remitted the penalty and the…

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