2014 (10) TMI 372 - AT - Central Excise

Rectification of mistake - imposition of penalty - Held that - Revenue s ROM is to the effect that they had filed an appeal against the original adjudicating authority s order dropping the demand before the Commissioner (Appeals) and as such the observations of the Tribunal in Para 5 are factually incorrect. We have seen the appeal filed by the Revenue before the Commissioner (Appeals) and find that the said appeal is only in respect of main assessee, i.e., M/s. Narindra Hard Board Industries Pvt. Ltd. Neither the name of Shri N.N. Gupta is appearing as respondent in the said appeal nor is there any separate appeal filed by the Revenue against Shri N.N. Gupta. As such, we find that the observations of the Tribunal in Para 5 are factually correct and no mistake can be said to have been happened. The imposition of penalty on the Managing Director stands correctly set aside. Accordingly, the said part of the ROM is not found favour with and accordingly rejected - Rectification denied.

Issues: Rectification of mistake application regarding remand order and penalty imposition

In the present case, the issue revolves around a rectification of mistake application filed by the Revenue concerning Final Order Nos. E/55682-55683/2013. The appeal of M/s. Narindra Hard Board Industries Pvt. Ltd. was remanded to the Commissioner (Appeals), while the appeal of Shri N.N. Gupta, ex-Managing Director, had the penalty of Rs. 10 lakhs set aside. The key issue analyzed by the Tribunal was the authority of the Commissioner (Appeals) to enhance the quantum of demand during remand proceedings without an appeal by the Revenue in the initial litigation round.

The Tribunal observed that the Commissioner (Appeals) had confirmed a duty demand of Rs. 7,46,073 in the remand proceedings, which was higher than the earlier confirmation of Rs. 3,28,648. The Tribunal emphasized that the Commissioner (Appeals) cannot increase the demand amount without an appeal by the Revenue in the first round of litigation. However, the Revenue contended that both the assessee and Revenue appeals were remanded by the Tribunal, indicating that the Tribunal's observation about no appeal by the Revenue was inaccurate.

Upon reviewing the appeal filed by the Revenue against the earlier order and the Tribunal's Final Order Nos. 236-237/2011-Ex, the Tribunal acknowledged the Revenue's position that the observations in the present Final Order were factually incorrect. Consequently, the matter was remanded to the Commissioner (Appeals) for a fresh decision, clarifying that he should not be bound by the erroneous observations in the previous order. The Revenue's rectification of mistake application was allowed in this regard.

Regarding the imposition of a penalty of Rs. 10 lakhs on Shri N.N. Gupta, the Tribunal noted that the penalty was not imposed in the initial round of litigation when the demand was confirmed. The Tribunal reasoned that since there was no appeal by the Revenue against the penalty imposition initially, the appellate authority rightly confirmed the demand but did not levy any penalty. Therefore, when the matter was remanded, the Commissioner (Appeals) could not have imposed the penalty on the Managing Director.

The Revenue's argument in the rectification of mistake application was that they had appealed against the original adjudicating authority's order dropping the demand before the Commissioner (Appeals), challenging the observations made by the Tribunal. However, upon examination of the appeal filed by the Revenue, the Tribunal found that it only pertained to the main assessee, M/s. Narindra Hard Board Industries Pvt. Ltd., and did not include Shri N.N. Gupta as a respondent. Consequently, the Tribunal concluded that the observations in the previous order were factually correct, leading to the correct setting aside of the penalty on the Managing Director. As a result, this part of the Revenue's rectification of mistake application was rejected.

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