TMI Blog2013 (10) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... It will be a very narrow view to hold that payment of 25% reduced penalty, if made within 30 days of the communication of OIO, will only be proper but if the same payment is made before the issue of show cause notice or Order in Original the same will not be proper and that in the latter situation, Respondent will be required to pay 100% of the penalty imposed under Section 11AC of the Central Excise Act, 1944 - penalty in excess of 25% of the penalty, already paid by the Respondent before the issue of show cause notice, is not payable under Section 11AC of the Central Excise Act, 1944 - Decided against Revenue. - Appeal No. : E/453 of 2007 - Final Order No. A/11179/2013-WZB/AHD - Dated:- 20-9-2013 - Mr. H.K. Thakur, J. For the Appellant: Shri S.K. Mall, AR For the Respondent: Shri Paritosh Gupta, Advocate JUDGEMENT Per : Mr. H.K. Thakur; This appeal filed by the Revenue was disposed of by the Bench vide order No. A/3131/WZB/AHD/07 dated 10.12.2007 when none appeared on behalf of the Respondent M/s. Shivam Textiles, by passing the following order:- 5. I have carefully considered submissions. The Respondent are not disputing that the order dated 20.3.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B and penalty under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 2002, was also imposed upon the Respondent. 3.1. During appeal with the first Appellate Authority it was noticed by the office of Commissioner (Appeals) that the date of OIO is 20.3.2006 and the same was served upon the Respondent on 06.4.2006, therefore, Respondent was called upon to show cause by Commissioner (Appeals) under F.No. V2 (52) 2002-2003/Ahd-I/06 dated 18.12.2006 as to why the appeal should not be held as time barred, as Commissioner (Appeals) is empowered to condone the delay of only 30 days as per the provisions of Section 35(1) of the Central Excise Act, 1944. It was argued by the Respondent before Commissioner (Appeals) that the said OIO was received by them only on 03.10.2006 and thereafter appeal was filed on 24.11.2006 within the stipulated period of two months from the date of receipt of OIO on 03.10.2006. Respondent filed an affidavit from one Shri P.C. Mittal stating that the OIO dated 20.3.2006 was received by his employee Shri Amritbhai S. Prajapati who kept it in his drawer. That the staff working with the firm could handover the said OIO only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder must be interpreted as just and proper receipt and not only a constructive receipt. 3.2. Commissioner (Appeals) also allowed the appeal of the Respondent for setting aside Section 11AC penalty imposed in excess of 25% already paid by Respondent before issue of show cause notice. 4. Aggrieved by the OIA, Revenue filed this appeal before CESTAT on the following grounds:- (i) That appeal filed before Commissioner (Appeals) was time barred as the OIO despatched by RPAD was received by the employee of the Respondent. (ii) That benefit of payment of 25% penalty under Section 11AC of the Central Excise Act was not admissible to the Respondent as it was not paid by the Respondent within 30 days of the order but was paid earlier and that can only be considered as a deposit made. 5. The above appeal filed by the Revenue was allowed by CESTAT under order dated 10.12.2007 by holding that appeal filed before Commissioner (Appeals) was time barred. Against this order, Respondent filed Tax Appeal No. 2647 of 2010 before the Hon'ble High Court which resulted into the present remand proceedings. 6. Heard both sides and perused the case records and the directions given by the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Commissioner of Central Excise Custom, Surat-I vs. Rupa Dyeing Printings Pvt. Limited. 8. From the arguments made by both sides and the case laws relied upon on the issue of improper authorisation, it is evident that conflicting views have been expressed for and against the issue. In the case of CCE Cus. Vs. Rupa Dyeing Printing Pvt. Limited case (supra), following was the question framed by Gujarat High Court:- Whether in the facts and circumstances of the case the Tribunal has committed substantial error of law in dismissing appeal of the Revenue as non-maintainable on the ground of alleged procedural irregularity In this case Gujarat High Court, relying upon the law laid down by Bombay High Court in the case of CCE vs. Corromandal Fertilizers Limited [2009 (237) ELT 453 (Bom.)], held as follows:- We are of the opinion that appeal is required to be allowed. In facts of the case, when it is pointed out that on account of non availability of regular incumbent to the Commissionerate, decision had to be taken by the Commissioner of other Commissionerate. It cannot be stated that decision was invalid or that was taken by the Commissioner, instead of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural defects, if any, get rectified when detailed reasons are accompanied in the grounds of appeal filed by the Revenue, in the light of case laws mentioned in Para 7 above, relied upon by the learned AR. In view of these observations, the preliminary objections raised by the advocate of the appellant on improper authorisation is rejected. 9. On merits of this appeal, for which case has been remanded by Hon'ble Gujarat High Court vide order dated 03.07.2012, Shri S.K. Mall (AR) argued that once AD is received by the Revenue then it has to be considered that Respondent has received the order on 06.4.2006. He relied upon the following case laws:- (a) Dhanlakshmi Steels vs. CESTAT, Chennai [2012 (275) ELT 525 (Mad.) (b) Amidev Agro Care Pvt. Limited vs. UOI [2012 (26) STR 299 (Bom.)] (c) CCE Ludhiana vs. Mohan Bottling Company P. Limited [2010 (255) ELT 321 (P H)] (d) Balwant Singh vs. Jagdish Singh [2010 (262) ELT 50 (S.C.)] (e) P. Bhoormal Tirupati vs. Addl. Collector of Customs, Madras [2000 (126) EKT 65 (Mad.)] (f) Neminath Fabrics Pvt. Limited vs. CCE [2013 (287) ELT 149 (Guj.)] 9.1 On the issue of non-admissibility of benefit of 25% reduced penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Kolkata High Court in the case of Matigara Rolling Mills (P) Limited vs. CCE Siliguri (supra) where it was held that an order/ notice has to be served to the intended person or an authorised person and that onus of service of lsuch order upon the intended person is on the department. Similar view was expressed by J K High Court in the case of Dina Nath vs. Commissioner of Income Tax (supra). The other case laws relied upon by the Revenue are also distinguishable to the facts and circumstances of this case. 11.1 In view of the conflicting views expressed by various the High Courts on this issue it has to be seen as to what could be the motive of the Respondent for denying the receipt of OIO on 06.4.2006. The entire duty amount of Rs. 2,40,500/- was paid by the Respondent on 06.8.2003 and a further amount of Rs. 61,000/- was paid on 21.08.2003 and 29.08.2003, which represented 25% of the amount of duty involved. All these payments were made much before the show cause notice was issued on 30.09.2004. As the amounts involved in the proceedings were already paid by the Respondent then it was not to gain in any way by posing if it has not to have received OIO in time. In the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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