2011 (3) TMI 1175 - AT - Central Excise

Abatement - since the abatement as claimed by the applicant has not been decided, they should not be subjected to the demand of duty, penalty and interest - Held that - The impugned order has been passed by the lower appellate authority as per the direction of this Tribunal in earlier proceedings. It is also an admitted fact that the Revenue has not challenged the earlier order passed by this Tribunal, therefore, the said order has attained finality. As per the Board s Circular No. 485/51/99-Cx dated 15.9.1999, the Board has given instruction that the Commissioner to decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted without asking him to pay duty first or where he had paid the duty, he should be reimbursed the amount of duty paid, in terms of the order of abatement issued by the Commissioner. As the lower appellate authority has kept the matter in abeyance as per the direction of this Tribunal, no infirmity in the impugned order as the claim of abatement is still not decided i.e. after the passage of time of almost more than 12 years. Thus why the department has filed this appeal when they are not aggrieved with the impugned order - appeal filed by the Revenue is rejected.

Summary

Issues:
Appeal against impugned order, abatement claim, demand of duty, penalty, interest, remand to Commissioner (Appeals), abatement proceedings, challenge to order, Board's Circular on abatement, appeal by Revenue.

Analysis:
The case involves an appeal by the Revenue against an impugned order in a second round of litigation. In the earlier round, the Tribunal held that the applicant should not be subjected to the demand of duty, penalty, and interest until their abatement claim is decided. The Commissioner (Appeals) subsequently ordered to keep the appeal in abeyance pending the abatement claim. The Revenue challenged this order, arguing that the abatement claim is a separate proceeding from the demand of duty due to short payment. The Tribunal noted that the impugned order was passed in compliance with its earlier direction and that the Revenue did not challenge the previous order, which had attained finality. Referring to the Board's Circular, the Tribunal emphasized the need for the Commissioner to first determine the eligibility for abatement before demanding duty payment. As the abatement claim remained undecided for over 12 years and the Revenue did not have any grievances with the impugned order, the Tribunal upheld the order and rejected the Revenue's appeal.

This judgment highlights the importance of following procedural directives, such as the Board's Circular, in matters concerning abatement claims and duty payments. It underscores the significance of finality in legal proceedings, emphasizing that failing to challenge previous orders can impact subsequent appeals. The Tribunal's decision to uphold the impugned order despite the Revenue's appeal demonstrates a commitment to fairness and adherence to established procedures. The case serves as a reminder of the need for clarity and consistency in resolving disputes related to duty payments and abatement claims to ensure justice and procedural correctness.