Custom, Excise & Service Tax Tribunal
Madhu Overseas P. Ltd vs Commissioner Of Customs (Prev), Mumbai on 23 December, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. C/S/2006/09 in Appeal No. C/1283/09
(Arising out Order-in-Original No. 139/2009/CAC/CC/MS dated 25.9.2009 passed by the Commissioner of Customs, Mumbai)
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Madhu Overseas P. Ltd.
Appellant
Vs.
Commissioner of Customs (Prev), Mumbai
Respondent
Appearance:
Shri H.R. Shetty, Advocate for the appellant Shri V.K. Singh, Addl.Commr (AR) for the respondent CORAM:
Honble Mr. B.S.V. Murthy, Member (Technical) Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 23.12.2011 Date of decision : 23.12.2011 O R D E R No:..
Per: Shri Ashok Jindal, Member (Judicial) Today when the matter was called for hearing of the stay petition filed by the appellant Madhu Overseas, the Ld. AR took the preliminary objection that the appeal is not maintainable. Therefore we are dealing with the preliminary objection raised by the ld. AR.
2. The facts of the case are that as per the contention of the revenue that a show-cause notice was issued by the appellant in the month of May 1998. After that an order of adjudication was passed imposing penalty on the appellant which was not challenged by the appellant before CESTAT but the said order was challenged by the other co-noticees. The said order was set aside by this Tribunal vide order dated 03.03.09. Thereafter a fresh adjudication took place and the impugned order has been passed on 25.9.2009 confirming a penalty of Rs.9,83,400/- on the appellant. The appellant are in appeal against this order. The matter was heard by this Tribunal on 06.06.2011 wherein a direction was given to the SDR to produce the documentary evidence of the show-cause notice and first adjudication order of the Commissioner having been served on the appellant or not. Today when the matter was called, the ld. AR produced the extract from the dispatch register showing the order was sent to the appellant. The objection raised by the ld. AR is that the appellant has not challenged the earlier order, therefore the second order confirming the penalty on the appellant is non est.
3. After hearing both sides, we find that it is admitted fact that the order imposing penalty on the appellant earlier adjudication has not been challenged before this Tribunal. Therefore, imposing the penalty in remand proceedings and demanding penalty from the appellant does not survive as there cannot be two penalties for the same Act. Therefore, after admitting the objection raised by the ld. AR, we find that the appeal deserves merit. Therefore, after waiving the requirement of pre-deposit, we have taken the appeal itself for disposal.
4. As contended by the ld. AR that the impugned order is non-est, therefore, the impugned order imposing penalty qua the appellant is not sustainable. Therefore, we set aside the order confirming the penalty on the appellant only and allow the appeal. Stay application and appeal are disposed of in the above manner.
(Operative part dictated in Court) B.S.V. Murthy Ashok Jindal Member (Technical) Member (Judicial) SR 3