Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Kany Healthcare on 14 October, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.E/706/2005
Arising out of OIA No.371/2004/134(BVR)/Commr(A)/Raj, dt.21.12.04
Passed by: Commissioner of Central Excise & Customs (Appeals), Rajkot
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Kany Healthcare
Respondent:
CCE Bhavnagar Represented by:
None for the Assessee; Shri R.S. Srova, JDR for the Revenue.
CORAM:
MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:14.10.09 ORDER No. /WZB/AHD/2009 Per: Mr.B.S.V. Murthy:
Revenue filed an appeal against the decision of Tribunal vide Order No.A/277/WZB/Ahbad/07, dt.24.01.07 reducing the penalty to Rs.15,000/- imposed under Section 11AC of Central Excise Act, 1944. The contention of Revenue was that penalty under Section 11AC to the extent of 100% is mandatory and there cannot be any reduction.
2. Honble High Court of Gujarat in Tax appeal filed by Revenue, has remanded the matter to this Tribunal with following directions.
The question raised in the appeals is whether the Tribunal has correctly applied the provisions of Rule 96ZQ (ii) of CER, 1944 and/or also the provisions of Section 11AC of CEA, 1944. The Tribunal has reduced the penalty exercising its direction. The Apex Court in the case of UoI Vs.Dharmendra Textile Processors 2008 (231) ELT 3 held that once the ingredients are satisfied, imposition of penalty is a mandatory requirement and no discretion is available.
Learned Counsel appearing for the assessee referred to an order passed by the Supreme Court in the case of UoI Vs. Dharmendra Textile Processors 2007 (215) ELT 321, especially Para 9 of the order, and stated that vires of Section 96ZQ is under challenge before this Court as well as before the Supreme Court and that being the fact situation, it is not necessary to remand the matter to the Tribunal for consideration afresh. We find it difficult to accept this contention.
In the facts of the circumstances of the case, we are satisfied that in light of the law laid down by the Apex Court in the case of UoI Vs. Dharmendra Textile Processors 2008 (231) ELT 3, the matters require to be considered by the Tribunal afresh. Therefore, the order of the Tribunal is set aside. The matters are remanded to the Tribunal for passing fresh orders in accordance with the law. The question of applicability of proviso to Section 11AC will also be considered and examined by the Tribunal while deciding the matter afresh. The Tribunal shall pass fresh order within a period of three months from the date of receipt of a copy of this judgment.
3. I have considered the submissions made by both sides. In this case, I find that both the lower authorities have not given an option to the appellant to pay duty and interest and penalty to the extent of 25% of duty within 30 days of the order. Therefore, in terms of the decision of this Tribunal in the case of CCEs Vs. Swati Chemicals Industries & Others being Order No.A/1556-1576/WZB/AHD/2009, dt.21.7.09, and also the decision of the Honble High Court of Gujarat in the case of CCE Ahmedabad Vs. M/s Akash Fashion Prints Pvt. Ltd. 2009 (93) RLT 471 (Guj.), an option is given to the appellant to pay duty and interest (if not paid) and 25% of the duty as penalty in terms of this Tribunals order dt.24.01.07, within 30 days of the communication of this order. It is made clear that if duty, interest and penalty are not paid within 30 days in terms of the above order, the penalty payable shall be equal to 100% of the duty.
4. Appeal is disposed of in above terms.
(Dictated & Pronounced in Court) (B.S.V. Murthy) Member (Technical) cbb ??
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