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TMI Blog2009 (12) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed 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. 2. Heard both the sides. 2.1 Shri S.R. Meena, learned DR pleaded that the quantity 316.57 quintals of Brown Sugar found short in the course of stock checking by the officers had been clandestinely remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent pleaded that so far as the issue of penalty enhancement to a minimum of Rs. 10,000/- is concerned, this issue has already been decided by the Larger Bench of the Tribunal in the case of CCE, Bhopal v. Rama Wood Craft (P) Ltd. reported in 2008 (225) E.L.T. 348 (Tri.-LB) = 2008 (10) S.T.R. 439 (Tri.) wherein the Tribunal held that what Rule 25(1) of Central Excise Rules, 2002 prescribes is an upper limit of penalty and within this upper limit, the adjudicating authority has discretion to impose any penalty; that in view of this, the Revenue's appeal for enhancement of penalty has been rightly dismissed by the Commissioner (Appeals); that Commissioner (Appeals) while disposing of the Revenue's appeal for enhancement of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) and should not have been dismissed on the ground that the respondent cannot raise this plea and that in view of this, the issue of confirmation of duty demand is required to be remanded back to the Commissioner (Appeals) for de novo consideration. Shri Gupta cited the judgment of the Tribunal in the case of Ispat Traders v. CC, Jamnagar reported in 2009 (235) E.L.T. 111 wherein in para 5.4 of the order, the Tribunal observed that when the order is partly favourable to the assessee and partly favourable to the Department, both may come in appeal within the specified time; that if one of them does not file appeal within the specified time and the other chooses to file an appeal, then the other party also gets an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum of cross objection as per the provisions of sub-section (4) of Section 35B of Central Excise Act within the stipulated period. Sub-section (4) of Section 35E provides that where in pursuance of order sub-section (1) or sub-section (2) of Section 35E the adjudicating authority, or an authorized officer makes an application to the appellate Tribunal or Commissioner (Appeals) within the period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent filed cross objection within the stipulated period wherein besides opposing the plea of the Revenue of enhancement of penalty, they also challenged the confirmation of duty demand on alleged shortage of brown sugar. When such a cross objection had been filed, the Commissioner (Appeals) should have dealt with all the pleas raised in it as the same has to be treated as appeal. If the order is partly favourable to the assessee and partly favourabe to the Department and the assessee does not file an appeal within the specified time but the department chooses to file the appeal against the findings adverse to it, the other side, as per the provisions of Section 35E(4) read with Section 35B(4), gets an opportunity to file a memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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