TMI Blog2008 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... de payment of duty – revenue’s appeal is dismissed - E/73/2007-SM - 1193/2008-SM(BR)(PB), - Dated:- 18-8-2008 - Justice S.N. Jha, President Shri R.K. Verma, DR, for the Appellant. Shri A.K. Dixit, Advocate, for the Respondent. [Order]. - This appeal by the Revenue is directed against the Order-in-Appeal of the Commissioner, Customs Central Excise dated 10-10-2006 dismissing the Revenue's appeal directed against the Order-in-Original of the Assistant Commissioner dated 25-5-2005 declining to impose penalty on the respondent. 2. The appeal is thus limited to non-imposition of penalty. It may be mentioned here itself that penalty was not imposed on the premise that the respondent-assessee had paid the entire duty prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5%. Reliance was also placed on decision of the Bombay High Court in CCE C, Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd. - 2007 (215) E.L.T. 23 (Bom.). In sum, the contention of the learned DR was that the Commissioner erred in declining to impose penalty even though the shortage of inputs was suggestive of clandestine removal thereof attracting Section 11A(2A) of the Central Excise Act. 4. On behalf of the respondent it was submitted that the appeal itself is not maintainable in view of the provisions of sub-section (2) of Section 35B of the Act. Counsel submitted that appeal can be filed only on the direction of Committee of Commissioners of Central Excise upon review of the impugned order but no such direction has been brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rculation, to file appeal against the impugned order-in-appeal before the Tribunal for imposition of penalty. 6. I have perused the notings of the genuineness of which is not in dispute and I am satisfied that the Committee of Commissioners duly considered the matter as required of them by sub-section (2) of Section 35B and decided, by circulation, that appeal be filed against the order in appeal on the point of imposition of penalty. Though, a formal authorization directing a Central Excise officer to file appeal in its behalf was not issued, I am of the view that the defect does not go to the root of the matter as the same can be cured post facto by issuance of an authorization at later stage, and therefore, I am inclined to think tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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