2008 (10) TMI 361 - AT - Central Excise

Penalty - original authority overlooked the corrigendum issued to the SCN - assessee preferred an appeal to the Commissioner (Appeals) - matter remanded to the lower authority for re-quantification of duty - Held that - remand order passed by the lower appellate authority without considering the assessee s case on merits is not sustainable in law - order passed by the original authority without considering the corrigendum to the SCN is also illegal - set aside both the orders and direct the original authority to pass fresh order of adjudication of the SCN as amended by the corrigendum thereto, after considering all the submissions of the party as also giving them a reasonable opportunity of being heard

Summary

Issues:
1. Discrepancy in duty demand amount and penalty imposed.
2. Failure to consider corrigendum to show-cause notice.
3. Legality of remand order by lower appellate authority.
4. Compliance with CBEC's Manual of Supplementary Instructions.
5. Disposal of appeal and stay application.

Analysis:
1. The original authority had demanded duty of Rs. 3,64,307/- from the assessee, along with an equal amount of penalty, based on a show-cause notice from Nov '02 to May '05. However, a corrigendum proposed to restrict the duty demand to Rs. 2,97,583/- was overlooked. The Commissioner (Appeals) remanded the case for re-quantification without discussing the merits, leading to the Tribunal finding both the original authority's and the appellate authority's orders as legally unsustainable. Consequently, the Tribunal directed the original authority to pass a fresh order considering the corrigendum and all submissions of the parties.

2. The Tribunal noted that an order against the assessee for an earlier period was pending appeal in the Supreme Court. The Tribunal highlighted the necessity for the original authority to await the apex court's decision as per CBEC's Manual of Supplementary Instructions, emphasizing the binding nature of such instructions on the original authority. This aspect was advised to be presented before the original authority for compliance with the prevailing CBEC instructions.

3. Ultimately, the Tribunal allowed the appeal by remanding the case, effectively setting aside the previous orders. The stay application was also disposed of in the process. The Tribunal's decision was dictated and pronounced in open court, ensuring transparency and adherence to legal procedures throughout the judgment process.