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TMI Blog2013 (8) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... 84 (ii) is not fulfilled - the order-in-review passed by the commissioner was not as per the provisions - the order was set aside – appeal allowed. - Appeal No.ST/92/2007 - A/10675/WZB/AHD/2013 - Dated:- 15-5-2013 - Sahab Singh And Anil Choudhary, JJ. For the Appellant : None For the Respondent : Shri K N Joshi, Astt. Commissioner (AR) Per: Sahab Singh: This appeal is filed by M/s Alpha Polypropylene against Order-in-Original No.26/Demand/Daman/2006, dt.26.12.2006, passed by Commissioner, Central Excise Service Tax, Daman. 2. The office premises of Alpha Group of companies (M/s Alpha Polymers, M/s Alpha Containers, M/s Alpha Polypropylene and M/s Alpha Platomer) were visited by Central Excise officers on 04.02.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994. The said show cause notice was confirmed by original authority vide Order-in-Original No.10/AC/MDMN/ST/04-05, dt.31.12.2004, while deciding the case, the adjudicating authority imposed discretionary penalty of Rs.1,67,400/- under Section 76 of Finance Act, 1994, besides imposing penalty of Rs.500/- under Section 75A of Finance Act, 1994, Rs.1000/- under Section 77 of Finance Act, 1994 and penalty of Rs.21,93,742/- under Section 78 of Finance Act, 1994. The Commissioner, in exercise of his powers under Section 84 Finance Act, 1994, reviewed the Order-in-Original only on the ground that the mandatory penalty should be imposed upon the appellant under Section 76 of Finance Act, 1994 and after issuing notice dt.01.09.2005 to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars from the issue of Order-in-Original is not over . 6. We find that the Commissioner, in impugned order, in Para 6, has stated that it is confirmed by Commissioner (Appeals) that no appeal against said Order-in-Original is pending before him. Also, in Para 10 of the impugned order, the Commissioner (Appeals) himself has mentioned that impugned Order-in-Original was set aside by the appellate authority in favour of the assessee against this, the Department has filed an appeal before Tribunal. We find that there is no doubt about the fact that appeal against said Order-in-Original was filed before Commissioner, Central Excise (Appeals) , and this fact is admitted by the Commissioner in his order itself. 7. In such a scenario, the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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