2004 (7) TMI 118 - AT - Central Excise

Summary

Issues:
1. Classification of items - Oil gauge, Front Stand Pin, Hub Pin, Seat Steering Clutch, and Shoe Steering Clutch
2. Imposition of penalty under Section 11AC
3. Filing of cross-objection against Order-in-Original after a lapse of 17 months

Classification of Items:
The appeals arose from Order-in-Appeal 158/2002-C.E., where the Commissioner allowed the departmental appeal regarding the classification of items. The appellants accepted the classification and paid the differential duty. The Commissioner noted the imposability of penalty under Section 11AC but did not impose any penalty. The Tribunal held that no penalty was imposed under Section 11AC by the Commissioner, thus the appellants were not liable for any penalty upon revision of classification.

Imposition of Penalty under Section 11AC:
The appellants contested the penalty imposed in Order-in-Original under Section 11AC and Rule 173Q, along with a penalty on the firm's proprietor under Rule 209A. The Commissioner (Appeals) observed that since the party did not file an appeal against the penalties imposed in the Order-in-Original, he could not consider the cross-objection on this matter. The Tribunal agreed with the Commissioner, stating that the penalties imposed in the Order-in-Original became final as no appeal was filed by the appellants before the Commissioner (Appeals).

Filing of Cross-objection:
The appellants argued that they had filed a cross-objection before the Commissioner (Appeals) in the departmental appeal, which should be deemed as an appeal. However, the Commissioner (Appeals) noted that there was no provision for filing cross-objections against the departmental appeal, especially after a lapse of 17 months from the date of the order. The Tribunal concurred with the Commissioner, emphasizing that cross-objection is only permissible before the Tribunal under Section 35B(4) of the Act, and not before the Commissioner (Appeals) under Section 35E. Therefore, the cross-objection was deemed not maintainable.

In conclusion, the Tribunal upheld the Commissioner's decision, stating that the penalties imposed in the Order-in-Original had become final due to the appellants' failure to file an appeal. The appeals were rejected, and it was held that the penalties were justified as per the provisions of Sections 35E and 35B of the Act.