2010 (5) TMI 37 - HC - Central Excise

Personal penalty Effect of the de novo remand back - The petitioner was alleged to be involved in the activities concerning two exporters, namely, Buildex Metals and National Steel Products Company Limited. Held that The petitioner was not a party before the Tribunal when the order of remand was passed by the Tribunal. He was neither made a party by the exporters nor by the revenue and there was no question of the petitioner having filed any appeal because he had already been exonerated by the Commissioner of Central Excise (Adjudication). Therefore, the order passed by the Tribunal, whereby the matter was remanded for de novo consideration, could not, in any event, affect the petitioner in any way. The petitioner had specifically brought to the notice of the Commissioner of Central Excise (Adjudication) in the course of the de novo proceedings that no proceedings could be taken up against the petitioner in view of the fact that he was not a party before the Tribunal and that, in any event, the earlier order-in-original, insofar as the petitioner was concerned, had already been accepted by the department. Despite this, the Commissioner of Central Excise (Adjudication), in the second round of adjudication, imposed a penalty on the petitioner. We are of the view that this could not have been done in the facts and circumstances of the case. The remand by the Tribunal did not relate to the petitioner as he was not a party before the Tribunal. decided in favor of petiotioner

Summary

Issues:
1. Quashing of order-in-original and restraining coercive action.
2. Exoneration of the petitioner in the initial order-in-original.
3. Imposition of penalty on the petitioner in subsequent orders-in-original.

Issue 1 - Quashing of order-in-original and restraining coercive action:
The petitioner sought the quashing of the order-in-original dated 18.12.2009 passed by the Commissioner of Central Excise and a direction to restrain coercive action. The court noted that similar issues had been decided in previous cases. The petitioner was an officer of the Department alleged to be involved with certain exporters. The show cause notices were adjudicated, and subsequent events led to the imposition of a penalty on the petitioner. However, the court found that the petitioner was not a party before the Tribunal when the matter was remanded, and therefore, the penalty imposed on the petitioner was unjustified. Consequently, the impugned order-in-original was set aside to the extent it related to the petitioner, and the writ petitions were allowed.

Issue 2 - Exoneration of the petitioner in the initial order-in-original:
The initial order-in-original dated 30.10.2006 had exonerated the petitioner, Mr. B.B. Goel, and no penalty was levied on him. The revenue did not file any appeal against this order in relation to the petitioner. The subsequent appeals filed by exporters and the revenue led to a remand by the Tribunal for de novo consideration. Despite the petitioner not being a party before the Tribunal, a penalty was imposed on him in the fresh orders-in-original. The court held that since the petitioner had already been exonerated and no appeal was filed against him, the penalty imposed in the subsequent orders was unwarranted.

Issue 3 - Imposition of penalty on the petitioner in subsequent orders-in-original:
Following the remand by the Tribunal, fresh orders-in-original were passed imposing a penalty on the petitioner. The petitioner contended that as he was not a party before the Tribunal and had been exonerated in the initial order, no penalty should have been imposed. The court agreed with the petitioner, emphasizing that the remand did not pertain to the petitioner, and therefore, the penalty imposed in the subsequent orders was unjust. Consequently, the impugned order-in-original was set aside concerning the petitioner, and the writ petitions were allowed.