TMI Blog2010 (3) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 - V.C. Daga and K.K. Tated, JJ. Shri R.B. Pardeshi, for the Appellant. Shri Madhur Baya, for the Respondent. [Order]. - P.C. : Heard the learned counsel appearing for the Revenue and the learned counsel appearing for the Respondent. 2. This appeal was admitted by an order dated 19-7-2007 to consider the following substantial question of law :- "Whether in the facts and circumstances of the case, the Tribunal is right in reducing the mandatory penalty u/s 11AC of the Central Excise Act, 1944?" 3. The factual matrix reveals that the show cause notice was issued against the Respondent-Assessee which was confirmed by an order-in-original 13-3-2003. The said order-in-original was subject matter of challenge before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in subsequent judgment in case of Union of India v. Rajasthan Spinning Weaving Mills, reported in 2009 (238) E.L.T. 3 (S.C.). The learned counsel for Revenue submits that the findings recorded by the Commissioner (Appeals) were not subject matter of challenge before the Tribunal at the instance of the Respondent-Assessee. Reliance is placed on the judgment of the Apex Court in case of Commissioner of Central Excise, Coimbatore v. EL.PEM. Industries reported in 2003 (157) E.L.T. 498 (S.C.) wherein the Apex Court has ruled that if the specific finding of fact is not challenged in the grounds of appeal then the submissions contrary to those findings cannot be entertained by the appellate Court. 6. The learned counsel for the Revenue, rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) has recorded the finding in paragraph No. 6 of its judgment that the lapse on the part of the Respondent was for a limited period ranging from June to August, 2001 because the subject provision was introduced in the budget for the year 2001-2002 which the Respondent could not notice. The amount of duty was paid even before the issuance of the show cause notice. As a matter of fact on this finding, Mr. Baya is right in contending that the provisions of Section 11(AC) could not have been invoked and the penalty could not have been imposed. However, the contradictory finding recorded by the Commissioner ought to have been challenged by the Respondent in the higher forum. The Revenue did challenge the findings of reduction of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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