Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding


  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2016 (11) TMI 9

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... appeal allowed by way of remand. - E/397 & 398/2004-DB - - - Dated:- 6-10-2016 - Shri S. S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member Shri G. Shivadass, Advocate For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per Ashok K. Arya 1. The appellants viz., M/s. Tilrode Chem Pvt. Ltd. Bangalore and Shri Ram Shah, Managing Director in appellant No.1 company, are originally in appeal against the Order-in-Original No.11/2003 BNG.11 dated 30.1.2003 passed by Commissioner of Central Excise, Bangalore-II. 2. The appellants have been represented by the learned advocate, Mr. G. Shivadass and the Revenue has been represented by learned AR, Shri N. Jagadish. 3. We have carefully considered the facts of the case along with the submissions of the appellants and the Revenue. 4. The matter has got a long history having gone up and down number of times. It went to Hon ble High Court of Karnataka three times. It came to this Tribunal also earlier three times. Now it is before us fourth time. The learned advocate for the appellant has given a chronological sketch of the events. After having gone through facts on record and the chrono .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ue before the Hon ble High Court of Karnataka against the Tribunal s Final Order No.900/2010 dated 16.6.2010, which was dismissed by the Hon ble High Court as not maintainable vide its order dated 16.9.2011. (vi) Aggrieved by Tribunal s order dated 30.8.2006 Department went in appeal to High Court of Karnataka. The assessee-appellant also filed counter appeal before the Hon ble High Court challenging the penalty. The Hon ble High Court by order dated 26.3.2010 in CEA No.43/2007 remanded the matter back to the Tribunal for considering the issue of penalty, directing to reconsider the case on merits by following the judgments of the Supreme Court and relevant provisions of the Excise Act. (vii) On the remand from the Honb le High Court vide its order dated 26.3.2010, the Tribunal passed Final Order No.310-311/2002 whereunder it upheld the order of the Commissioner imposing penalty equivalent to the duty confirmed under Section 11AC of Central Excise Act, 1944 in the earlier order dated 30.8.2006. (viii) Aggrieved by the Tribunal s above Final Order dated 30.8.2006, the appellants filed CEA No.57/2012 before the Hon ble High Court of Karnataka and Hon ble High Court of Karnat .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ith the interest and penalties. Again appeals were filed. The Tribunal by stay order dated 03.09.2004, directed the assessee to pre-deposit an amount of ₹ 30 lakhs within a period of 3 months. However, the assessee deposited only a sum of ₹ 10 lakhs in two instalments and filed miscellaneous application for waiver of the balance amount and the same was allowed. The Tribunal passed the final order dated 30.08.2006 by which the assessee was called upon to pay a penalty of 10% of the duty besides the duty confirmed in the said order. Aggrieved by the said order, the department preferred an appeal to the High Court. The assessee also preferred a counter appeal challenging the imposition of penalty. The High Court by order dated 26.03.2010, allowed the appeal of the revenue and remanded the matter back to the Tribunal to reconsider the issue of penalty in view of the decision of the Hon ble Supreme Court in the case of Union of India vs. Dharamendra Textiles Processors reported in 2008 (231) E l.T. 3 (S.C.). After such remand the Tribunal heard the parties and dismissed the appeal. The Tribunal was of the view that the contention of the assessee i.e., entitlement of the bene .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... The Hon ble High Court further observes in Para 7 at pages 13-14 of the said judgment that if the assessee has paid excess payment, the excess payment should be adjusted towards the amount due and after deduction, no duty is payable or no interest is payable, the question of imposing penalty would not arise at all. Penalty is leviable only for non-payment of duty and interest and in terms of the orders of assessment. If the excess paid amount is taken into account, adjusted towards the duty, the question of imposing penalty would also not arise. That factor also should be gone into by the authority and appropriate orders should be passed on the basis of the materials available on record . 5.5 The Hon ble Karnataka High Court sets aside the Tribunal s Final Order Nos.310-311/2012 dated 9.5.2012 passed in appeal No. E/397-398/2004 whereunder the penalty equal to the amount confirmed against the assessee were held payable by them under Section 11AC of the Central Excise Act, 1944 and the penalty of ₹ 50,000/- imposed on the Managing Director of the assessee-company was maintained. 6. Consequent to passing of the order dated 6.12.2013 by the Hon ble High Court, the appellan .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... anded Excess sought to be adjusted (3,96,748) -2,12,937 (4,01,769) -4,26,409 -40,572 0 Balance *Excess in the year would get carried forward to the next year for calculation of interest 3,96,748 1,83,811 5,85,580 1,59,171 1,18,599 7. We have earlier in para 5.2 above reproduced the Order passed by the Hon ble High Court in the judgment dated 6.12.2013 in CEA No.57/2012. The Hon ble High Court in the said judgment holds that the substantial questions of law framed in para 4 of the said judgment are answered in favour of the assessee and against the Revenue. The net effect of this is that: (i) The assessee is entitled to the benefit of reduced penalty in terms of proviso to Section 11AC of CEA, 1944, where the payment of penalty is paid within the time stipulated. (ii) The assessee is entitled to adjustment of ex .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates