ORDER
P.S. Bajaj
1. None has come present on behalf of the respondents. Notice sent to the respondents for today’s hearing has been received back with the remarks ;factory lying closed’. There is no other address of the respondents on the file for sending them fresh notice. It is only a reference application moved by the Revenue and as such I proceed to decide the same.
2. This reference application has been directed by the Revenue against the Final Order No. A/1267/98-NB dated 10.12.98 for making reference of the question to the High Court as to whether penalty under sub-rule 4 of the Rule 57 I which was embodied in that Rule on 23.7.96, can be imposed for an infringement committed prior to that (i.e.during April -June, 1992), when show cause notice was issued on 12.1.97 after the insertion of this sub-rule.” The Tribunal has taken the view, while accepting the appeal of the respondents against Order-in-Appeal No.309/CE/JPR/JR/98 dated 1.6.98 passed by the Commissioner who upheld the Order-in-Original of the Assistant Commissioner imposing penalty under sub-rule 4 of Rule 57 I on the respondents on the ground that show cause notice was issued after the insertion of that sub-rule, although the infringement by them was committed at that time when this sub-rule was not at all in existence on the statue, that provisions of sub-rule (4) could not be given retrospective effect. The law prevailing at the time when wrongful act was done,was to determine penalty liability. For taking this view, the Tribunal relied upon the Apex Court judgement in Brij Mohan case (1979 120 ITR I which was earlier followed by the Tribunal in the case of Marcandy Prasad Radhakrishna Prasad vs. CCE, Calcutta [1998 (25) RLT 919]. The Apex Court in that case had observed that, “it is the law operating on the date on which the wrongful act was committed which determines the penalty. Where the penalty is imposed for concealment of particulars of income,it is the law in existence on the date where the act of concealment took place which is relevant.” The Tribunal, therefore set aside the Order-in-appeal of the Commissioner imposing penalty under sub-rule (4) of the Rule 57 I of the Rules on the respondents.
3. The law being well settled, I do not find any sufficient ground for making reference of the question of law as proposed by the Revenue to the High Court. Apparently, the provisions of sub-rule 4 of rule 57 I , of the Rules could not be given retrospective effect for posing penalty on the respondents for the act done by them before the insertion of that sub-rule.The date of show cause notice was not to determine the penalty liability, but it was the date of wrongful act committed by them and the law prevalent at that time which was to be applied. Therefore no question of law for making a reference to the High Court arises out of the Tribunal’s Final Order dated 10.12.98 referred to above.
4. As a result, the reference application of the Revenue is declined.
(Pronounced in the Court)