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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 ..... dent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 5,000/- on the respondent; that the Commissioner (Appeals)'s order dismissing the Department's appeal for enhancement of penalty to Rs. 10,000/- is contrary to the provisions of Rule 25(1) of Central Excise Rules, 2002 as minimum penalty prescribed under this Rule is Rs. 10,000/- and penalty less than this amount can not be imposed; that the cross objection filed by the respondent before the Tribunal in which the duty demand itself has been challenged, merits rejection, as the respondent did not file any appeal before Commissioner (Appeals) against the Asstt. Commissioner's order confirming the duty demand and in course of proceedings before the Commissioner (Appeals) had only filed the cross objection wherein the issue of confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tt. Commissioner's order confirming the duty demand, when the Revenue filed a review appeal before the Commissioner (Appeals) for enhancement of penalty, the respondent as per the provisions of Section 35E(4) of Central Excise Act filed a memorandum of cross objection and in respect of this memorandum of cross-objection, as per the provisions of this sub-section, the provisions of sub-section (4) of Section 35B are applicable, that as per the provisions of sub-section (4) of Section 35B, on receipt of notice, that appeal has been referred under Section 35B, the party against whom appeal has been preferred, may, notwithstanding that he may not have appealed against such order or any part thereof, file, within 45 days on receipt of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Tribunal is squarely applicable to the facts of this case. 3. I have carefully considered the submissions from both the sides and perused the records. In this case, the appellant's factory was visited by the Departmental Officers on 8-4-06 and in course of stock checking, shortage of 316.57 quintals of brown sugar was detected vis-a-vis records maintained by the respondent. The duty involved on the shortage was Rs. 27,446/-. The Asstt. Commissioner vide order-in-original dated 9-1-07 confirmed the duty demand of Rs. 27,446/- along with interest on it and besides this imposed penalty of Rs. 5,000/- on the respondent under Rule 25(1) of Central Excise Rules, 2002. In course of adjudication proceedings before the Asstt. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Department before the Tribunal or Commissioner (Appeals) under Section 35B(1) or Section 35B(2) read with Section 35B(4), the same is treated as appeal filed by the Department against the order passed by the adjudicating authority and in respect of this appeal, the provisions of sub-section (4) of Section 35B would be applicable. Sub-section (4) of Section 35B provides that on receipt of notice that appeal has been preferred, the party against whom the appeal has been preferred may, not withstanding that he may not have appealed against such order or any part thereof, file, within 45 days from the receipt of the notice, memorandum of cross objection verified in the prescribed manner against the appeal and such memorandum shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the Commissioner (Appeals)'s order holding that the respondent in the cross objection cannot plead the whole issue of the impugned order in original and that their plea is required to be limited only to the question of penalty, is not correct. 4. In view of the above discussion while 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. 5. Matter is remanded to Commissioner (Appeals) for considering the respondent's plea with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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