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2013 (1) TMI 528 - CESTAT, AHMEDABADApplicability of Doctrine of merger – Penalty imposed on late deposition of duty - Rule 96ZP of the Central Excise Rules, 1944 - Revenue impose penalty - Assessee preferred appeals before the first appellate authority who has sustained the said penalties imposed - Subsequently, the Revenue had preferred appeals against non-imposition of equivalent amount of penalties on all the assessee - The first appellate authority dismissed the appeals of the Revenue only on the question of doctrine of merger Held that:- Difference of opinion - Whether it can be said that the orders of adjudicating authority have merged with the orders of Commissioner (Appeals) on appeals filed by the respondents as held by learned Member (Judicial) - The doctrine of merger is not applicable and the Commissioner should have decided the appeals filed by the Revenue on merits as held by Member (Technical). Third member decision agree with Member (Technical) - First appellate authority has erred in coming to a conclusion that his order of sustaining the penalties imposed by the adjudicating authority would be an order in which the impugned orders-in-original have merged and doctrine of merger will apply. Following the decision in case of Godrej & Boyce Mfg. Co. Ltd. (2008 (12) TMI 45 - BOMBAY HIGH COURT) that the doctrine of merger will not apply in the case as the Revenue is in appeal against non-imposition of equivalent amount of penalty, as provided in the Rules. Also following the decision in case of ULTRA TECH CEMENT CO. LTD. (2008 (9) TMI 246 - CESTAT AHMEDABAD) that doctrine of merger will not be applicable inasmuch as the subject matter of appeal by party was entirely different with the subject matter of appeal by the Revenue. Set- aside the order and the matters are to be remitted back to the Commissioner (Appeals) for reconsideration. Remand back
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