2009 (7) TMI 1021 - AT - Central Excise

Summary

Issues:
- Appeal for imposing penalty under Section 11AC of the Central Excise Act
- Lack of representation for the respondent
- Failure to serve notice on the respondent due to premises being in possession of another company
- Finding of the lower appellate authority regarding penalty under Section 11AC
- Lack of challenge by the Revenue on the crucial finding of the lower appellate authority
- Dismissal of the appeal

Analysis:

1. The appeal before the Appellate Tribunal CESTAT MUMBAI involved a request by the department to impose a penalty on the respondent under Section 11AC of the Central Excise Act. The respondent did not have any representation during the proceedings, and efforts to serve notice on the respondent were hindered as their premises were under the possession of another company, SDIL, Mumbai. Despite the respondent vacating the premises without informing the Registry, the notice of hearing was deemed to have been served on the respondent.

2. The judgment highlighted that the learned Commissioner (Appeals) had made a crucial finding regarding the penalty under Section 11AC. The Commissioner held that the ingredients of Section 11AC were not present in the case, leading to the conclusion that no penalty could be imposed under that section. The judgment noted that there was no challenge by the Revenue regarding this finding by the lower appellate authority. It was emphasized that the appeal did not contain any assertion that the necessary elements for imposing a penalty under Section 11AC were met in this case. Consequently, the plea for imposing a penalty on the respondent under Section 11AC could not be considered.

3. Ultimately, the appeal was dismissed by the Appellate Tribunal. The decision was made after considering the lack of challenge by the Revenue on the crucial finding of the lower appellate authority and the absence of any plea in the appeal itself regarding the applicability of Section 11AC for imposing a penalty on the respondent. The judgment concluded with the dismissal of the appeal, thereby upholding the decision that no penalty under Section 11AC could be imposed on the respondent in this case.