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TMI Blog2021 (12) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 141 of the Constitution of India. The observation of the Commissioner (Appeals) for denying the refund for amount of penalty under Rule 173Q, is erroneous and bad - the impugned order-in-appeal is modified and penalty of ₹ 25,000/- deposited under the provisions of Rule 173Q is held refundable - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 52669 of 2018-SM - FINAL ORDER No. 52041/2021 - Dated:- 2-12-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) None for the appellant (Written submissions) Shri Yashveer Singh, Authorised Representative for the respondent ORDER The issue in this appeal is whether the claim of refund of the amount of penalty deposited (imposed under Rule 173Q of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,000/- Total 10,62,567/- 25,000/- 3. The Commissioner (Appeals) recorded his finding as follows:- i) The main issue to be decided in this case is whether the refund claim of ₹ 10,87,567/- filed by the appellant is admissible to them or not? I find that the appellant, engaged in manufacture of Hot Re-rolled Products of Iron Steel, defaulted in payment of central excise duty determined under the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 for certain months and hence show cause notices were issued and the adjudicating authority vide following OIOs confirmed the demands and imposed penalty under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 10,62,567/- under Section 11AB of the Central Excise Act, 1944 as per the directions of the Deputy Commissioner, Central Excise Division-I, Jaipur contained in his aforesaid letter dated 21.03.2012. The Assistant Commissioner, Central Excise Division-I, Jaipur vide OIO No. 10-148/2016 dated 22.07.2016 dropped the proceedings initiated for imposition of penalty and recovery of interest under 4th proviso to Rule 96 ZP(3) of the Central Excise Rules, 1944 (which were earlier kept in abeyance) in the light of the Hon ble Supreme Court order dated 24.11.2015. Consequently, the appellant has filed the instant claim. ii) I find that in none of OIOs mentioned in the table above, the adjudicating authority has ordered for recovery of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the OIOs and the same was deposited by the appellant as per the OIOs. It is not on the record that the appellant had gone in appeal against the said OIOs or the Deputy Commissioner, Central Excise Division-I, Jaipur s letter C. No. IV(16)05/Tech-I/Div.I/2012/1521 dated 21.03.2012 and the Assistant Commissioner, Central Excise Division-I, Jaipur vide OIO No. 10-148/2016 dated 22.07.2016 dropped the proceedings initiated for imposition of penalty and recovery of interest under 4th proviso to Rule 96ZP(3) of the Central Excise Rules, 1944 only. Hence, I hold that the refund of penalty of ₹ 25,000/- is not admissible to the appellant. iv) In view of the above, I set aside the impugned order to the extent of refund of ₹ 10,62,597/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was operating under Annual Capacity Determination Rules, 1997 wherein pursuant to separate Order-in-original an amount of duty of ₹ 3 lakhs was confirmed and penalty of ₹ 3,000/- was imposed under Rule 173Q, but the charging of interest and penalty under 4th proviso to Rule 96ZP(3) of Central Excise Rules, 1944 was kept in abeyance in view of the general direction of the Hon ble Supreme Court in the case of Supreme Industries and General Mills Others. The Commissioner (Appeals) further observed that in none of the Orders-in-original there is any order for recovery of interest under Section 11AA /11AB of the Central Excise Act. Further, the interest alongwith penalty was kept in abeyance. Thus, there was no liability of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und as appellant has not filed any appeal for such penalty, though the matter was sub-judice and subsequently re-adjudicated pursuant to remand, in the Order-in-original dated 22.07.2016. Accordingly, he prays for allowing the appeal with appropriate relief. 8. Learned Authorised Representative Shri Yashveer Singh for the Revenue relies on the impugned order. 9. Having considered the rival contentions, I find that it is admitted fact on record that the Hon ble Supreme Court in the case of Hans Steel Rolling Mills (supra) has held that penalty under Rule 173Q is not imposable where an assessee is operating under the compound levy scheme which is a complete code in itself. The order of Hon ble Supreme Court is binding on all sub-ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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