TMI Blog2016 (7) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, which were both filed heard and disposed of prior to the filing of the appeals by the Revenue. - there is no error in the orders of the Id.Commissioner (Appeals) - Decided against the revenue. - Ex. Appeal No. 1500 & 1503/05 & Co-41,40/07 - Final Order No. 70186-70187/2016 - Dated:- 6-5-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Ashutosh Nath, Astt. Commr. (D.R.) for the Department None for the Respondent (s) ORDER These Appeals are preferred against the order of Commissioner (Appeals) dated 25.01.2005, by which he refused to entertain the appeals of the Revenue, preferred against the order of the adjudicating authority, challenging the imposing of token pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the end of month or ₹ 5,000/-, whichever is greater, is imposable. Hence, penalty imposed is liable to be enhanced equal to the amount of duty. The Id. Commissioner (Appeals) vide the separate OIA of even date, rejected the appeal of Revenue observing that the assessees had filed the appeal against the same impugned order and both the appeals are disposed of on merits vide OIA dated 27.02.2004 and 25.08.2004 respectively. Thus the impugned 010 has merged with the OIA and nothing survives for the Id. Commissioner (Appeals) to pass any further order. It was further observed that there is no necessity for considering Cross Objection of the assessee, under the circumstances. 2. Being aggrieved, Revenue is in appeal against both the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case where penalty of ₹ 5,000/- imposed on the assessee by the adjudicating authority was confirmed in the appeals filed by the assessee. The scope of those appeals was limited to examining whether the imposition of even ₹ 5,000/- as penalty was justified or not. No higher penalty could have been imposed in those appeals because, imposition of higher amount of penalty was not in issue and could not have been in issue in an appeal which was filed by the notices only against the order to the extent that it imposed penalty. However, in the appeal of the Revenue, the question that, higher penalty of the amount equal to the amount of duty outstanding remain live after the confirmation of the penalty of ₹ 5,000/-. 3.2 Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench in Kundil Alloys Pvt. Ltd., which is referred to in paragraph 5 of the judgement of the learned Single Member. It however, appears that Hon'ble the High Court of Punjab and Haryana in Shree Bhagwati Steel Rolling mils Vs. CCE, Chandigarh reported in 2007 (207) ELT 58 (P H), while considering the same issue has, in terms, held that even by omission of Section 3A of the said Act, liability of the assessee there under was not wiped out. The Hon'ble High Court noted that, by Section 131 of the Finance Act, 2001 Section 38A was added in the said Act, that interalia, provided the saving provisions. The Hon'ble High Court answered the question framed in para 9(i) to the effect whether omission of compounded levy scheme wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. 5.1 Having considered the rival contention, we find that the powers of the Id.Commissioner (Appeals) are coterminous with the power of the adjudicating authority. For reference, we quote Section 35A (3) : 35A. (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against : Provided that an order enhancing any penalty. or fine in lieu of confiscation or confiscation goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order : Provided further that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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