Page 227 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] TANNA ELECTRIC CO. v. COMMISSIONER OF CGST, MUMBAI CENTRAL 129
must be preceded by mens rea. The classical view that ‘no mens rea,
no crime’ has long ago been eroded and several laws in India and
abroad, especially regarding economic crimes and departmental
penalties, have created severe punishments even where the offences
have been defined to exclude mens rea. Therefore, the contention
that Section 37(1) fastens a heavy liability regardless of fault has no
force in depriving the forfeiture of the character of penalty.”
6.13. I further find that once it is established that ingredients to at-
tract operation of Section 78 of Finance Act, 1994 are present in a
case, the discretion to quantify the amount of penalty ends. For this
I place reliance upon the case of Union of India v. Rajasthan Spinning
& Weaving Mills [2009 (238) E.L.T. 3 (S.C.)] wherein the Apex Court
held “ though the applicability of Section 11AC would depend up-
on the existence or otherwise of the conditions expressly stated in
the Section, once the Section is applicable in a case the concerned
authority would have no discretion in quantifying the amount and
penalty must be imposed equal to the duty determined under Sub-
section (2) of Section 11A.”
The appellants have availed exemption without fulfilling condition of the Notifi-
cation and without discharging R & D Cess liability have admittedly contra-
vened the provisions of the Notification, thus making them liable to penalty. Ac-
cordingly, we uphold the imposition of penalty in the light of the above deci-
sions.
13. In view of the foregoing, the impugned order is upheld and appeal
is rejected.
(Order pronounced in the open Court on 1-8-2019)

_______

2020 (35) G.S.T.L. 129 (Tri. - Mumbai)
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

Shri Ajay Sharma, Member (J)
TANNA ELECTRIC CO.
Versus
COMMISSIONER OF CGST, MUMBAI CENTRAL
Final Order No. A/86286/2019-WZB, dated 19-7-2019 in Appeal
No. ST/88300/2018
Refund - Limitation - Erection, Commissioning and Installation Ser-
vice provided to (i) Department of Atomic Energy, Government of India; and
(ii) Municipal Corporation of Greater Mumbai (MCGM) - Assessee pleading
limitation period under Section 11B of Central Excise Act, 1944, inapplicable as
Service Tax amount paid by mistake liable to be treated as deposit with Gov-
ernment - HELD : Refund claim preferred by assessee in terms of provisions of
impugned Section 11B ibid, hence it cannot be said that except for limitation

GST LAW TIMES  2nd April 2020  291