2008 (4) TMI 553 - AT - Central Excise

Summary

Issues involved: Rectification of mistake in the order of the Commissioner (Appeals) regarding penalty imposition for clandestine removal and contradictory orders passed by the Tribunal on appeals filed by both the revenue and the respondent.

Rectification of mistake in penalty imposition: The revenue filed an application for rectification of mistake regarding the penalty imposed by the Commissioner (Appeals) in a case of clandestine removal. The Commissioner (Appeals) had set aside the entire order of the original adjudicating authority instead of enhancing the penalty from Rs. 10,000/- to Rs. 1,77,991/- as requested by the revenue. The Tribunal had remanded the matter to the Commissioner (Appeals) to rectify the defects in the order. Simultaneously, the respondent had filed an appeal against the enhancement of penalty equivalent to the duty amount, arguing that since the duty was paid before the show cause notice, the penalty should be reduced to at least 25% as per Section 11AC. The Tribunal allowed the respondent's appeal, resulting in two contradictory orders on the same issue. It was contended that both appeals should have been heard together due to the cross appeals by both sides.

Error in hearing the appeals: The Tribunal acknowledged that there was an error in not hearing both the respondent's and the revenue's appeals together. The Registry, as well as the parties, failed to point out that the respondent's appeal was pending when the revenue's appeal was being considered. Since both appeals were filed on the same issue, they should have been heard together. The Tribunal recognized the mistake in its orders and decided to recall both orders. The registry was directed to schedule both appeals for a fresh hearing on 2-5-2008 to ensure a fair and consistent decision-making process.