Bombay High Court
Ane Industries Pvt. Ltd., Chandrapur ... vs Commissioner Of Central Excise And ... on 6 December, 2019
Bench: R.K. Deshpande, Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CENTRAL EXCISE APPEAL NO. 22 OF 2017
APPELLANT :- The Commissioner of CGST and Central
Excise, Kendriya Utpad Shulk Bhavan,
Telankhedi Road, Civil Lines, Nagpur-I
...VERSUS...
RESPONDENT :- ANE Industries Private Limited,
Hindustan Lalpeth Open Cast Mine,
Chandrapur, Office at Chandigarh Road,
Nawanshahr 144514, Punjab.
AND
CENTRAL EXCISE APPEAL NO. 03 OF 2018
APPELLANT :- ANE Industries Pvt.Ltd.
Wani Area, Mungoli Open Cast Mines,
Urjagram, Nagpur Road, Padoli,
Chandrapur, having its office at
Chandigarh Road, Nawanshahr- 144 514,
Punjab. Through Director.
...VERSUS...
RESPONDENT :- Commissioner of Central Excise
and Customs Telangkhedi Road,Civil
Lines,Post Box No.81,Nagpur-440 001.
AND
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CENTRAL EXCISE APPEAL NO. 04 OF 2018
APPELLANT :- ANE Industries Pvt.Ltd.
Chandrapur Area, Hindustan Lalpeth
Open Cast Mines, Chandrapur having its
office at Chandigarh Road, Nawanshahr-
144 514, Punjab. Through Director.
...VERSUS...
RESPONDENT :- Commissioner of Central Excise
and Customs Telangkhedi Road,Civil
Lines, Post Box No.81,Nagpur-440 001.
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Mr. S.N. Bhattad Sr. Standing counsel assisted by Adv.Kunal Nalamwar
counsel for the Appellant in CEL No.22 of 2017 and for Respondent in CEL
No.3,4 of 2018
Mr.Anand Jaiswal, Senior Advocate, assisted by Mr. Bharat Raichandani and
Nikhil Gaikwad, counsel for the appellants in CEL No.3, 4 of 2018 and for
Respondent in CEL No.22 of 2017
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CORAM : R.K. DESHPANDE &
MILIND N. JADHAV, JJ.
DATE : 6th DECEMBER, 2019.
ORAL JUDGMENT :
1] Central Excise Appeal No.22 of 2017 was admitted by this Court on 08.01.2018 and the following substantial question of law was framed:-
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"Whether the Tribunal is legally correct in setting aside the penalties imposed under Rule 15(3) of Cenvat Credit Rules, 2004 read with Section 78 of Finance Act, 1994."
2] The aforesaid appeal is filed by the Department challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai, on 18.01.2017, setting aside the order of penalty imposed under Rule 15(3) of the Cenvat Credit Rules, 2004 read with Section 78 of the Finance ACt, 1994.
3] Central Excise Appeal Nos. 3 and 4 of 2018 are filed by the Assessee, challenging the order dated 07.03.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai, alongwith the order dated 03.07.2017 rejecting the rectification. The Tribunal has remanded back the matter for recalculation of liability on the basis of reconciliation statement. These appeals are not yet admitted.
4. The learned counsels appearing for the parties agree that the Tribunal has failed to consider the question of limitation under sub-section (1) of Section 73 of the Finance Act, 1994. The question of imposition of penalty would arise only after the ::: Uploaded on - 13/12/2019 ::: Downloaded on - 25/04/2020 15:43:29 ::: cea22.17- 4/5 decision of the question on such plea of limitation. According to the learned counsels appearing for the parties, the Tribunal has to first judge as to whether the case of the assessee is covered by proviso below sub-section (1) of Section 73 of the Finance Act, 1994. After recording the findings on the aspects so covered by the proviso, the question of limitation as provided under sub-section (1) of Section 73 of the Finance Act will have to be decided. It is only thereafter the question of maintaining or setting aside the order imposing penalty passed by the lower authority would arise.
5] Our attention is invited by Shri Anand Jaiswal, the learned senior advocate appearing for the assessee to the findings recorded by the Tribunal in paragraph No.5.4 of the order impugned in this appeal, to urge that the case of the appellant falls outside the proviso below sub-section (1) of Section 73 of the Finance Act. We need not go into this aspect of the matter in details, as we find that the question is arguable and can be decided afresh by the Tribunal.
6. In view of the aforesaid position, all these appeals are allowed. The orders dated 07.03.2017 and 03.07.2017 passed ::: Uploaded on - 13/12/2019 ::: Downloaded on - 25/04/2020 15:43:29 ::: cea22.17- 5/5 by the Tribunal and challenged in in Appeal Nos. 3 of 2018, 4 of 2018 filed by assessee and in Appeal No.22 of 2017 filed by the department are hereby quashed and set aside. The parties to appear before the Tribunal on 16.12.2019. The Tribunal shall consider the facts of the case and the rival contentions on the touch stone of the provisions of sub-section (1) of Section 73 of the Finance Act and shall proceed further to adjudicate the controversy in accordance with law.
All questions are left open. No order as to costs.
JUDGE JUDGE
Rvjalit
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