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2016 (7) TMI 890 - CESTAT ALLAHABAD

2016 (7) TMI 890 - CESTAT ALLAHABAD - 2016 (343) E.L.T. 948 (Tri. - All.) - Power of commissioner (appeals) to enhance the penalty - the power of the first Appellate Authority, in Revenue matter, were power of enhancement, is also vested in the Appellate Authority, the powers are coterminous with the adjudicating authority. In other words, what the adjudicating authority can do or could have done, can be done by the Id.Commissioner (Appeals). - Accordingly, we are not in agreement to the Id. Sin .....

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arwar, 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 penalty of ₹ 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/ .....

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CER and was further pleased to impose penalty of ₹ 5,000/- in the case of M/s Pankaj Industries and ₹ 10,000/- in the case of M/s Durga Steel Rolling Mills, under Rule 96ZP (3) of CER read with Section 11AC of the Act. In both these cases, both the referred assesses filed appeals before the Id. Commissioner (Appeals), challenging the imposition of penalty and vide separate OIA, the Id. Commissioner (Appeals) was pleased to reject the appeal of the respondent-assessee confirming the a .....

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mount 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 O .....

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s 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 penalty, but the only penalty. 3. Earlier these appeals came up before the Single Member Bench and Misc.Application Order No. 71/07-SM (BR) dated 06.03.200 .....

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ch event it could have been argued that the question of imposing higher penalty did not survive. This is a 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 .....

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owever, 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. L .....

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ed by the learned Single Member in Excise Appeal No. 5533-35 of 2004 by order dated 10.11.2006, holding that when the provisions of Section 3A were omitted from the statue with effect from 11.5.2001, the proceedings initiated under the said provisions would automatically lapse. The decision in Mitra Steels & Alloys Pvt. Ltd., was also followed by the Division Bench in Kundil Alloys Pvt. Ltd., which is referred to in paragraph 5 of the judgement of the learned Single Member. It however, appea .....

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High Court answered the question framed in para 9(i) to the effect whether omission of compounded levy scheme wipes 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 o .....

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bsequent decisions of the Single Member Bench was required to be reconsidered in view of the decision of the Punjab and Haryana High Court in Shree Bhagwati Steel Rolling Mills (supra). The papers of these matters, may therefore, be placed before the president for placing the matters before a Division Bench for disposal. " 4. The respondent assessee is absent in spite of notice. Neither, there is any time petition. As the facts lie in a narrow compass and the appeals are pending since 2005, .....

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nulling 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 where the Commissioner (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 .....

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