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TMI Blog2005 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... -) was imposed by the lower authorities on the respondents. The penalty was imposed in one case under Section 11AC read with Rule 12 and in another case under Rule 26. 2. The reason given by the Commissioner (Appeals) for non-enhancement of penalty is as follows :- However, from the judgments of Hon ble CEGAT in the cases relied upon by the respondent M/s. Delta Elastomel, Plant II, and so also in the case laws mentioned below it is noticed that Hon ble CEGAT and Hon ble High Court have held that penalty under Section 11AC equal to duty amount is maximum but not mandatory. (i) Alchemie Pvt. Ltd. v. C.C.E., Mumbai-II - 2000 (117) E.L.T. 745 (Tribunal), (ii) Worthy Plywood Ltd. v. C.C.E., Calcutta - 1999 (112) E.L.T. 906 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cross objection they are pleading for relief. 6. Learned Advocate has brought forward the following case laws :- (i) 1994 (70) E.L.T. 225 (Tribunal) - Polycone Paper Ltd. v. C.C., Bombay-1. The Tribunal had an occasion to examine similar matter in this case though the Revenue (respondent) had not filed any appeal or cross objection against that part of the order of the Collector (Appeals). This Order of the Tribunal also referred to Rule 10 of Customs, Excise Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 which reads as under :- 10. Grounds which may be taken in appeal. - The appellant shall not accept by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in his favour even upon grounds which were negative in that judgment. In this judgment the Apex Court held that the respondents cannot be precluded in this appeal from canvassing from reversal of a finding contained in the impugned judgment despite its end result being in their favour. Learned Advocate again refers to the case of Polycon Papers Ltd. and argued that the Code Civil Procedure, 1908, Order 41 Rule 33 which empowers the Appellate Court to consider even though appeals may not have been filed against such decree. 7. Learned Advocate also refers to the case of Ronuk Industries Ltd. v. Collector of Customs - 1985 (22) E.L.T. 572 (T). In this case the Tribunal has observed the following :- It is a settled law that despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and so is the rule of limitation [See, Municipal Corporation of Delhi Engineers Ors. v. Intnl. Security Intelligence Agency Ltd. - JT 2003(2) S.C. 103 and Superintending Engineer Ors. v. B. Subha Reddy - (1999) 4 SCC 423]. Against a decision by the High Court or Tribunal which is partly in favour of one and partly in favour of the other, both the parties are aggrieved and each one of them has a right to move an application in this Court seeking leave to appeal. One who does not do so and allows the prescribed period of limitation to lapse, cannot come up by way of cross-objections on the other party coming up in appeal, though we must qualify our statement of law by reference to Sri Babu Ram v. Shrimati Prasanni Ors. - 1959 SCR 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome up with arguments, for what can be referred to as fortuitous benefit. Relying upon the Hon ble Supreme Court s order in Jamshed Hormusji Wadia s case and the Tribunal s order in the case of G.K. Enterprises discussed above, I do not find any merits in the arguments advanced by the respondent in this case. At the same time in respect of arguments made by the Revenue for enhancement of penalty too. I am not in agreement particularly due to the sea-change effected by the Larger Bench of this Tribunal in Machino Montell (I) Ltd. Case. 11. I, therefore, do not find merits in the arguments of the Revenue as well, in so far as enhancement of penalty is concerned. I therefore uphold the order of the Commissioner (A) rejecting the appeal fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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