2010 (2) TMI 476 - HC - Central Excise

Appeal to Appellate Tribunal - Whether in the facts and circumstances of this case the Tribunal has committed substantial error of law in rejecting appeal of the department on the basis of incorrect jurisdictional fact that the department had not appealed against finding and order of the Assistant Commissioner, Central Excise, Division Olpad, Surat-II, for non-imposition of penalty on unit? Held that - personal penalty set aside by Commissioner (Appeals) by an order preceding imposition penalty on unit passed subsequently. Not known whether order imposing penalty pointed out to Tribunal as order not containing any reference. Relevant facts not placed before Tribunal when appeal of Director decided. Impugned order not interfered with.

Summary

Issues:
Appeal under Sec. 35-G of the Central Excise Act, 1944 regarding rejection of department's appeal against non-imposition of penalty on a unit.

Analysis:
The Tax Appeal was filed by the Commissioner of Central Excise questioning the Tribunal's decision to reject the department's appeal based on incorrect jurisdictional facts. The substantial question of law proposed was whether the Tribunal erred in rejecting the appeal on the basis that the department had not appealed against the order of the Assistant Commissioner for non-imposition of penalty on the unit. The Tribunal's observation was that the penalty was set aside by the Commissioner (Appeals) due to lack of fraud or willful misstatement, and the findings of the Assistant Commissioner had not been appealed against by the Revenue.

The Revenue contended that they did appeal before the Commissioner (Appeals) and pointed out that the adjudicating authority had confirmed the unit's contravention in availing excess Cenvat credit, leading to the imposition of a penalty. The Commissioner (Appeals) upheld the penalty, stating that the unit's actions were intentional and warranted penalty imposition. The Revenue argued that this order was final and not challenged further, emphasizing that the Tribunal did not consider this aspect while confirming the Commissioner (Appeals) order.

The High Court examined the submissions and orders, noting that the Tribunal did not reference the penalty imposition order by the Commissioner in its decision. Despite the chronological order of penalty imposition on the director and the unit, the relevant facts regarding the penalty on the unit were not presented to the Tribunal during the director's appeal. Consequently, the Court found no justification to interfere with the Tribunal's decision and concluded that no substantial question of law arose from the Tribunal's order. Therefore, the appeal was dismissed.