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TMI Blog2016 (7) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... enging the imposing of token penalty of Rs. 5,000/- instead of equal penalty, equal to tax under Rule 96ZP (3) of CER read with 11AC of the Act. In the case of M/s Pankaj Industries, the duty involved was Rs. 2,13,444/-, which had not been paid for the period July, 1998 to October, 1998 under the provisions of Rules 96ZP (3) read with Section 3A of the Act. In the case of M/s Durga Steel Rolling Mills, the amount not paid was Rs. 52,186/- under Rule 96ZP (3) of CER read with Section 11AC of the Act. The Adjudicating Authority vide separate OIO, confirmed the amount of duty in arrears as recoverable under Section 11A (2) read with Section 11AB of CER and was further pleased to impose penalty of Rs. 5,000/- in the case of M/s Pankaj Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst both the impugned orders on the ground that the observations of Id. Commissioner (Appeals), are irrational. Further, in the appeal of the assessees, the Revenue was not heard before passing the appellate order dated 27.02.2004 and 25.08.2004, which was obviously passed on the grounds taken by the assessee. The appeal preferred by the Revenue was on fresh ground and ought to have been decided on its own merit. Further, reliance was placed on the ruling of the Hon'ble Alllahabad High Court in the case of PEE AAR Steels (P) Ltd. Vs. Commr. of Central Excise, Meerut : 2004 (170) ELT 406 , wherein it is held that equal amount of penalty prescribed is to be imposed, wherever duty is not paid by the stipulated date. It is not the maximum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the above facts, the matter would have been remanded to the commissioner (Appeals) for considering the appeals of the Revenue on merits. However, the respondents have preferred Cross-Objection under Section 35 B (4) of the Central Excise Act, 1944, after the appeals were notified for final hearing and have relied upon the decisions of the Tribunal, in which it has been held that after the omission of the provisions of Section 3A of the Central Excise Act, 1944 w.e.f. 11.5.01, the proceedings initiated under the provisions of Rule 96ZP(3) would automatically lapse. A Division Bench of the Tribunal in Mitra Steel & Alloys Pvt. Ltd. Vs. CCE, Raigad, reported in 2006 (204) ELT 144 (Tri. Mumbai), while dealing with similar proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s out the liability of the assessee for the period during which the scheme was in operation, by holding that even by omission of Section 3A, the liability of the assessee there under was not wiped out. It would, therefore, prima-facie, appear that in cases where the liability had already arisen before the repeal of Section 3A, it would not be wiped out, on the ratio of the decision of the Hon'ble Punjab and Haryana High Court in Shree Bhagwati Steel Rolling Mills case (supra). 4. In view of the conflicting views appearing in the decisions of the Division Bench of the Tribunal and the subsequent decision of the Hon'ble Punjab and Haryana High Court, the matter is required to be referred to a Division Bench for deciding whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded , no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in Section 11A to show-cause against the proposed order" (emphasis supplied). 5.2 The Id.Commissioner (Appeals) have been vested with the jurisdiction to even enhance the quantum of assessment and also to impose penalty or enhancement the amount of penalty after giving an opportunity of hearing to the assessee. Considering the power of enhancement, the Hon'ble Supreme Court in the case of Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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