9911796707
TMI Blog2016 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... that of production of necessary documents to the assessee-appellant within one month of receipt of this order - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... o.5/2011 was filed by the Revenue before the Hon'ble High Court of Karnataka against the Tribunal s Final Order No.900/2010 dated 16.6.2010, which was dismissed by the Hon'ble High Court as not maintainable vide its order dated 16.9.2011. (vi) Aggrieved by Tribunal s order dated 30.8.2006 Department went in appeal to High Court of Karnataka. The assessee-appellant also filed counter appeal before the Hon'ble High Court challenging the penalty. The Hon'ble High Court by order dated 26.3.2010 in CEA No.43/2007 remanded the matter back to the Tribunal for considering the issue of penalty, directing to reconsider the case on merits by following the judgments of the Supreme Court and relevant provisions of the Excise Act. (vii) On the remand from the Honb le High Court vide its order dated 26.3.2010, the Tribunal passed Final Order No.310-311/2002 whereunder it upheld the order of the Commissioner imposing penalty equivalent to the duty confirmed under Section 11AC of Central Excise Act, 1944 in the earlier order dated 30.8.2006. (viii) Aggrieved by the Tribunal s above Final Order dated 30.8.2006, the appellants filed CEA No.57/2012 before the Hon'ble High Court of Karnataka and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed the duty along with the interest and penalties. Again appeals were filed. The Tribunal by stay order dated 03.09.2004, directed the assessee to pre-deposit an amount of ₹ 30 lakhs within a period of 3 months. However, the assessee deposited only a sum of ₹ 10 lakhs in two instalments and filed miscellaneous application for waiver of the balance amount and the same was allowed. The Tribunal passed the final order dated 30.08.2006 by which the assessee was called upon to pay a penalty of 10% of the duty besides the duty confirmed in the said order. Aggrieved by the said order, the department preferred an appeal to the High Court. The assessee also preferred a counter appeal challenging the imposition of penalty. The High Court by order dated 26.03.2010, allowed the appeal of the revenue and remanded the matter back to the Tribunal to reconsider the issue of penalty in view of the decision of the Hon'ble Supreme Court in the case of Union of India vs. Dharamendra Textiles Processors reported in 2008 (231) E>l.T. 3 (S.C.). After such remand the Tribunal heard the parties and dismissed the appeal. The Tribunal was of the view that the contention of the assessee i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon'ble High Court further observes in Para 7 at pages 13-14 of the said judgment that if the assessee has paid excess payment, the excess payment should be adjusted towards the amount due and after deduction, no duty is payable or no interest is payable, the question of imposing penalty would not arise at all. Penalty is leviable only for non-payment of duty and interest and in terms of the orders of assessment. If the excess paid amount is taken into account, adjusted towards the duty, the question of imposing penalty would also not arise. That factor also should be gone into by the authority and appropriate orders should be passed on the basis of the materials available on record . 5.5 The Hon'ble Karnataka High Court sets aside the Tribunal s Final Order Nos.310-311/2012 dated 9.5.2012 passed in appeal No. E/397-398/2004 whereunder the penalty equal to the amount confirmed against the assessee were held payable by them under Section 11AC of the Central Excise Act, 1944 and the penalty of ₹ 50,000/- imposed on the Managing Director of the assessee-company was maintained. 6. Consequent to passing of the order dated 6.12.2013 by the Hon'ble High Court, the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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