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2011 (4) TMI 1191 - AT - Central ExciseDemand and penalty - Held that - Merely because previous order of the Tribunal dt.28.1.2008 is under appeal before Hon ble High Court, the question of granting stay against the order dated 15.9.2010 of the Commissioner (Appeals) which is nonest, does not arise - The appeal alongwith stay petition is dismissed as infructuous.
Issues:
1. Confirmation of demand and penalty by original authority 2. Setting aside of original authority's order by Commissioner (Appeals) 3. Tribunal's dismissal of Revenue's appeal 4. Review of original authority's order by Commissioner 5. Setting aside of original authority's order by Commissioner (Appeals) in a subsequent review 6. Appeal filed by department against the subsequent setting aside 7. Dismissal of appeal along with stay petition as infructuous Analysis: 1. The original authority confirmed the demand and imposed a penalty on M/s. Kundan Castings Pvt. Ltd. On appeal, the Commissioner (Appeals) set aside the original authority's order. Subsequently, the Tribunal dismissed the Revenue's appeal challenging this decision. 2. The Commissioner (Appeals) reviewed the original authority's order dated 28.3.2006 and set it aside, directing the adjudicating authority to reconsider the case taking into account relevant judicial pronouncements. The department filed an appeal against this subsequent decision. 3. The Tribunal noted that the original authority's order had already been set aside by the Commissioner (Appeals) in a previous appeal, and the Revenue's appeal to the Tribunal had been dismissed. Therefore, the Commissioner (Appeals) setting aside the order again in 2010 was deemed nonest, making the appeal filed by the department against it infructuous. 4. The Tribunal clarified that since the previous order was already under appeal before the High Court, there was no need to grant a stay against the 2010 decision of the Commissioner (Appeals) as it was considered nonest. 5. Ultimately, the appeal along with the stay petition was dismissed as infructuous, concluding the legal proceedings in this matter.
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