2009 (12) TMI 380 - AT - Central Excise

Cross objections- This is a Revenue s appeal against order-in-appeal passed by Commissioner (Appeals), Allahabad by which the Commissioner (Appeals) dismissed the Department s review appeal for enhancement of penalty under Rule 25(1) of Central Excise Rules, 2002 and besides this also dismissed the memorandum of cross objection filed by the respondent before the Commissioner(Appeals) observing that the respondent in their memorandum of cross objection have seized the opportunity to drag the whole issue of order-in-original which is beyond the scope of present departmental appeal. The respondent have filed the cross objection in which they have challenged the main issue - confirmation of duty demand of Rs. 27,446/- on alleged shortage of 316.57 quintals of Brown Sugar detected at the time of officers visit to the factory. Held that- the Revenue s appeal for enhancement of penalty is dismissed, the cross objection filed by the respondent is allowed and the Commissioner (Appeals) is directed to consider the Respondent s plea with regard to confirmation of duty demand on alleged shortage of brown sugar on merit. The cross objection filed by the respondent stands disposed of as above. Matter is remanded to Commissioner (Appeals) for considering the respondent s plea with regard to confirmation of duty demand on alleged shortage of brown sugar.

Summary

Issues:
- Appeal against order-in-appeal dismissing review appeal for enhancement of penalty under Rule 25(1) of Central Excise Rules, 2002
- Dismissal of memorandum of cross objection filed by respondent before Commissioner (Appeals) challenging duty demand confirmation on shortage of Brown Sugar

Analysis:
1. The Revenue filed an appeal against the order-in-appeal dismissing the review appeal for penalty enhancement and also challenging the dismissal of the memorandum of cross objection by the Commissioner (Appeals). The respondent contested the duty demand confirmation on the shortage of Brown Sugar.

2. The Revenue argued that the duty demand was rightly confirmed due to the clandestine removal of 316.57 quintals of Brown Sugar without payment. They contended that the penalty should be enhanced to Rs. 10,000 as per Rule 25(1) of Central Excise Rules, 2002. The respondent's cross objection was challenged on the grounds that they did not appeal against the duty demand confirmation earlier.

3. The respondent's counsel cited a Tribunal judgment regarding the applicability of cross objections when one party files an appeal and the other does not within the specified time. They argued that the plea regarding the duty demand confirmation should have been considered by the Commissioner (Appeals) based on the provisions of Section 35E(4) of the Central Excise Act.

4. The Tribunal analyzed the submissions and records, noting that the respondent contested the shortage of Brown Sugar during stock checking. The Asstt. Commissioner confirmed the duty demand and imposed a penalty. The Tribunal emphasized the provisions of Section 35B(4) and Section 35E(4) regarding cross objections and remanded the issue back to the Commissioner (Appeals) for reevaluation.

5. Consequently, the Tribunal dismissed the Revenue's appeal for penalty enhancement, allowed the respondent's cross objection, and directed the Commissioner (Appeals) to reconsider the plea regarding the duty demand confirmation on the shortage of Brown Sugar. The matter was remanded for further consideration.