2009 (11) TMI 787 - AT - Central Excise

Summary

Issues:
Department's appeal against order of the Commissioner (Appeals) dated 29-8-2007, Cross-Objection arising from the appeal.

Analysis:
The judgment pertains to an appeal filed by the Department against the order of the Commissioner (Appeals) dated 29-8-2007. The original authority had confirmed a duty demand of Rs. 2,21,390/- along with interest and imposed a penalty of Rs. 3,000/-. Subsequently, the Commissioner (Appeals) allowed the party's appeal against this order. However, the Commissioner reviewed the original authority's order and directed the filing of an appeal on the basis that the penalty imposed should have been a minimum of Rs. 10,000 instead of Rs. 3,000. The appeal filed in response to this review was dismissed by the Commissioner (Appeals) in the impugned order dated 29-8-2007.

The Tribunal noted that the original authority's order dated 16-11-2006 had been set aside by the Commissioner on 26-3-2007, rendering the review order dated 12-4-2007 as a review of a non-existing order. The Department sought to enhance the penalty from Rs. 3,000 to a maximum of Rs. 10,000 based on the review order, even though the penalty of Rs. 3,000 was no longer in force at the time of the appeal. Consequently, the Tribunal held that the appeal by the Department was not maintainable and rejected it. The Cross-Objection was also disposed of accordingly.

In conclusion, the Tribunal's judgment focused on the maintainability of the Department's appeal in light of the Commissioner's actions regarding the penalty imposed in the original order. The Tribunal found that the appeal seeking enhancement of the penalty was not valid as the original penalty order had already been set aside, making the review order ineffective. The decision highlights the importance of procedural correctness and the necessity for legal actions to be based on existing and enforceable orders to maintain the integrity of the appeal process.