1. This appeal under section 36-C of the Central Excises Act, 1944, has been directed against the order, dated 26-7-2004, passed by the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-III, Karachi, whereby the appeal preferred by the appellant against the judgment, dated 7- 7-2001, passed by Collector (Adjudication) was dismissed and consequently, order of the Collector providing for recovery of Rs.14,718,392 as additional duty and penalty of rupees 5 millions from the appellant was maintained.
2. Mr. Khalid Jawaid Khan, learned counsel for the appellant contended that show-cause notice, dated 12-6-2001 was not received by the appellant in time, therefore, they could not offer any reply/ explanation for the purported delay in depositing Central Excise duty for the period viz. July, 1998, September, 1998 to June, 1999. He further contended that even though the appellant was not given due opportunity to contest the matter it was incumbent upon the Collector to have taken into consideration proper applicability of section 3-B of the Central Excises Act, 1944 read with Rule 96ZZA of the Central Excise Rules, 1944, before levying additional duty and penalty upon the appellant. In this context, learned counsel has made reference to the judgments of this Court, in the case of Ideal Glass (Pvt.) Ltd. v. Federation of Pakistan 1999 PTD 1308 and Assistant Collector of Customs, and Central Excise, Division-III, Sukkur, v. Messrs Mari Gas Company Limited (2003 PTD 818) wherein a fine distinction has been drawn by the Court as to the B import of phrase "shall pay" and "shall be liable to pay".
3. After hearing the learned counsel for the parties and going through the impugned order/judgment, we have come to the conclusion that Collector (Adjudication) while passing the impugned order, dated 7-7-2001 did not advert to this aspect of the case and imposed additional duty and penalty in a mechanical manner.
4. Since it is also the grievance of the appellant that show-cause notice. Dated 12-6-2001 was not served on them in time due to which they could not submit their reply/explanation to the show- cause notice, the Collector will also allow two weeks time to the appellant to submit their reply before finally deciding the case. .