Customs, Excise and Gold Tribunal - Delhi
M/S Engineers Combine vs Cce, Delhi on 5 March, 2001
ORDER
K.K. Bhatia
1. This is a matter in which the Tribunal vide their Order No. E/S/221-222/1998-A dated 13.7.98 had remanded the matter to the Commissioner in the following terms :-
"In the light of what we have indicated above, we set aside the impugned order and remand the case to the Jurisdictional Adjudicating Authority for re-determination of the assessable value of bushes and of central excise duty payable, taking into consideration all the contentions of appellant recorded int his order and such other contentions as the appellant may urge before the Authority after remand and after proper specification of the correctness of the various elements for arriving at the assessable value. The Commissioner shall also verify the correctness of the amount of duty stated in the impugned order paid by the appellant after issue of the show cause notices. The Authority shall cause notices. The Authority shall further decide whether this is a fit case for imposing penalty and the quantum of penalty. If the Authority does not propose to proceed on the basis of the data recited in the reply dated 10.6.98 and referred to above, he shall supply a copy of the revised data to the appellant prior to personal hearing. Appeals are accordingly allowed."
2. On remand the Commissioner has passed the order dated 24.11.2000, in which he has confirmed a demand of totally amounting to Rs.55,03,034.68 on the appellants under Section 11A of Central Excise Act, 1944. The Commissioner in his order has further observed that a sum of Rs.52,13,809/- which had already been paid as differential duty is appropriated against the total demand and consequently an amount of Rs.2,89,225.68 is ordered to be recovered along with appropriate interest under Section 11AB. The Commissioner has also imposed a penalty of Rs.55,03,034.68 equal to the amount of duty, under Rule 173Q of Central Excise Rules, 1944.
3. The present appeal is against the above Order of the Commissioner. We have heard Sh. A.R. Madhav Rao, Advocate for the appellants and Sh. P.K. Jain, SDR for the respondents. The ld. Advocate for the appellants submits that as against the aforestated amount of differential duty confirmed on the appellants, they are liable to pay only Rs.53,04,730/-. In this regard, the ld. Advocate has drawn attention to para 12 of the Order of the Commissioner in which a reference is made to such submission before him by the party. However, the adjudicating authority in his order has not given any reasons for rejection of the amount of liability admitted by them and confirming the excess amount. It is further contended that in these proceedings, the Commissioner in his earlier Order No. 8-9/98 dated 12.2.98 had imposed a penalty of only Rs.3.5 lakhs on the party whereas in his present order he has imposed the penalty of more than Rs. 55 lakhs without assigning any reasons for such increase. In view of these facts, therefore, it is contended that this order is not sustainable especially in view of the fact that the admitted liability of duty is already remitted by the appellants. It is, therefore, submitted that this order should set aside.
4. The ld. SDR for the Revenue, on the other hand submits that the Commissioner in his order has given detailed reasons for confirming the amount of the differential duty on the appellants and there in no ground to set it aside. It is further contended that the respective amounts of differential duty with detailed calculation, for the periods from April, 1992 to July 1993 and August 1993 to Jan., 1994 are already clearly indicated int he show-cause notices issued in this regard and therefore there was no warrant to repeat the same in the Order-in-Original. It is pleaded that since there was no ground to reduce the duty liabilities, the amount specified in the show-cause notice has been confirmed on them. As regards the penalty amount, the ld. SDR drew attention to the remand order of the Tribunal in which - it is contended that full liberty is given to the adjudicating authority to decide and re-quantify the amount of penalty. Accordingly, it is submitted that keeping in view the amount of differential duty involved in the case, the penalty has been determined and imposed on the appellants. On this score also there is no deficiency in the order of the Commissioner and the same should accordingly be upheld.
5. We have considered the submissions made by both the sides. As already stated above, the impugned order is passed no remand by the Tribunal. It is seen form the remand order that the Commissioner was asked to determine the duty amount and accordingly he has fixed this at Rs. 55,03,034.68. However, it is seen that the appellants had pleaded before him that they were liable to pay only an amount of Rs.53,04,730/-. The Commissioner in his order has no where examined this assertion of the appellants much less he has rejected it. We are, therefore, of the view that this point would call for re-consideration. As regards the amount of penalty imposed on the appellants, it is observed that the Tribunal in its remand order had given a very clear direction to the Commissioner to decide whether this was a fit case for imposing penalty and the quantum of penalty. Though, the Commissioner has enhanced the penalty on the appellants from Rs. 3.5 lakhs to more than Rs. 55 lakhs but he has recorded no reasons for the same. It is pleaded before us by the ld. Counsel for the appellants that it is not open to the Commissioner to enhance the penalty from Rs.3.5 lakhs as imposed on them n the earlier order. We have considered these submissions. The Tribunal in its remand order had left it to the Commissioner to decide whether this case is a fit for imposing a penalty and if so determine the quantum of the same. We are, therefore, of the considered view that the Commissioner was free to re-quantify the amount of penalty in the de-novo proceedings. However he had to give the reasons for imposing the penalty and the quantification thereof which is lacking in this order.
6. In view of the above analysis, the order passed by the Commissioner is set aside and the matter is remanded to him to re-determine the quantum of differential duty to be recovered from the appellants on taking into consideration the submissions made by them. He should follow the directions given in the aforestated order dated 16.7.98 of the Tribunal and decide whether this is fit case for imposition of penalty and the quantum thereof. The Commissioner should pass a speaking order on both of these points. The appellants shall be afforded a reasonable opportunity of hearing before taking a final view in the matter. Since the case is pending decision for a long time, the Commissioner should pass a de-novo order within three months of the receipt of this order.
7. The appeal is thus allowed by remand in the above terms.
(Dictated and pronounced in Open Court)