2010 (2) TMI 602 - HC - Central Excise

Appeal preferred by the Revenue, was dismissed only on the ground of smallness of the amount - order of the Commissioner was not challenged by the Revenue before the Tribunal - Tribunal has deleted the penalty - Revenue has now brought to the notice of the Court that the Revenue has also filed appeal, which is pending before the Tribunal - It is open for the Revenue to agitate the issue before the Tribunal in the pending appeal, irrespective of the dismissal of the Tax Appeal.

Summary

Issues:
1. Dismissal of Tax Appeal by High Court on grounds of smallness of amount.
2. Challenge of order passed by Commissioner (Appeals) before the Customs Excise and Service Tax Appellate Tribunal.
3. Request for recalling the order passed by the High Court.

Analysis:
1. The High Court dismissed a Tax Appeal filed by the Revenue due to the small amount involved, which was Rs. 25,000. The penalty imposed under Section 11AC of the Central Excise Act, 1944 was reduced from Rs. 6,33,590 to Rs. 25,000 by the Commissioner (Appeals). The Tribunal deleted the penalty of Rs. 25,000, leading to the filing of the present Tax Appeal.

2. A Miscellaneous Application was filed to point out that the Revenue had also filed a Tax Appeal before the Tribunal challenging the order of the Commissioner (Appeals), which was still pending. The Court acknowledged the submissions but clarified that its previous order was specific to Tax Appeal No. 334/2009 concerning the small amount and did not prevent the Revenue from pursuing their challenge before the Tribunal.

3. The Court held that the order passed on 28-1-2010 did not need to be recalled or modified, except for the clarification provided regarding the specific context of the dismissal of Tax Appeal No. 334/2009. The Revenue was allowed to continue their challenge before the Tribunal despite the High Court's decision, ensuring that the order did not hinder their rights to appeal.

In conclusion, the High Court maintained its original decision to dismiss the Tax Appeal based on the amount involved but clarified that the Revenue could proceed with their challenge before the Tribunal. The application was disposed of with the provided direction and observation, ensuring the proper adjudication of the matter before the appropriate forum.