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M/s MK Trading Co. Versus Commissioner of Central Excise, Mumbai-I

2015 (10) TMI 2076 - CESTAT MUMBAI

Rectification of mistake - Appeal dismissed as below the monetary limit - Held that:- It is very clear from the provision of Section 35B - that any of the amount i.e. either duty, or penalty or fine involved in a particular case is less than ₹ 50,000/- can be disposed of as per the discretion provided under proviso to Section 35B(1). - there is no stage prescribed under the law for exercising the discretion by the Tribunal for disposing of the appeal in terms of proviso to Section 35B(1) - .....

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r, Member (J) For the Appellant : Ms Lalita S. Phadke, Adv For the Respondent : Shri Ashutosh Nath, Asstt. Commissioner (AR) ORDER Per Ramesh Nair An application for Rectification of Mistake arises out of Order No. A/1530/15/SMB dated 8/5/2015 passed by this Tribunal. 2. Ms. Lalita S. Phadke, Ld. Counsel for the applicant reiterates the ground of application. She further submits that appeal was dismissed on the ground that the amount of duty involved in the case less than ₹ 50,000/-. She s .....

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penalty exceeds the limit of ₹ 50,000/- and therefore the appeal could not have been dismissed on this ground alone. Alternatively she submits that in the present case appeal has been admitted and the stay was granted, therefore at the final hearing stage this Tribunal is not correct in dismissing the appeal only on the ground monetary limit in terms of Section 35B. In this support she placed reliance on the judgments of the Hon'ble High Court in case of Commissioner of Central Excise .....

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0/- but the Tribunal has considered the mater on merit. She also placed reliance on the following judgments: (a) Ajanta Offset & Packaging Ltd Vs. Commissioner of C. Ex., Delhi-IV [2010 (261) ELT 878 (Tri. Del.)] (b) Collector of Central Excise, Bombay - II Vs. Garware Paints Limited [1986 (25) ELT 399 (Tri.)] 3. Shri Ashutosh Nath, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue submits that as per proviso to Section 35B (1) discretion is provided to the Hon'ble Tribun .....

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00/- order of dismissing the appeal is correct and legal. As regard the issue that appeal admitted and stay granted, he submits that discretion by this Tribunal can be exercised at any point of time before final disposal of the appeal, therefore merely because stay order was passed the discretion of the Tribunal does not stand taken away to decide the appeal on threshold limit. 4. I have carefully considered the submissions made by both sides. 5. I find that proviso to Section 35 B (1) clearly p .....

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