ORDER
K.K. Usha, J. (President)
1. This appeal has been filed by the assessee challenging the imposition of penalty under Adjudication order No. 115/Commr. C. Ex./06, dated 5-8-1996 passed by the Commissioner of Central Excise, Indore. It is seen that the records relating to the above appeal were missing in this Tribunal. Therefore, in spite of repeated represervation from the assessee, the appeal could not be posted for hearing.
2. While so, the assessee filed a fresh appeal on 7-2-2002 along with application to condone the delay of five years and six months in filing the appeal. The appellant has also produced as Annexure A along with application to condone the delay, copy of the original appeal of 1996 filed by the appellant before this Tribunal records relating to which are found missing. It is not open to appellant to file a fresh appeal in 2002. What is required is only the reconstruction of the original file. Since he has produced a copy of the Memorandum of appeal E/l/540/96 as Annexure A along with the application to condone the delay, we are inclined to take it as the reconstructed original appeal of the year 1996.
3. On going through the above Memorandum of Appeal filed on 8-11-1996, we find that the challenge in the appeal was limited to imposition of penalty of Rs. 25,000/- under the impugned order. The appellant has specifically stated in Col. 9 of the Memorandum of appeal that the duty amount of Rs. 2,36,275/- has not been demanded because it has already been paid vide PLA Entry Nos. 50 and 51, dated 22-9-1995 and 53, dated 29-9-95 and no appeal has been made in this regard. In Col. 10 against, reliefs sought in the appeal, the appellant has stated to delete the quantum of penalty of Rs. 25,000 and thus granting the full relief to pay the penalty i.e. to set aside the order. In the grounds of appeal also, the challenge is only against the imposition of penalty. The demand of duty is not challenged in the appeal at all.
4. But in the appeal sought to be filed in 2002, the appellant has taken several grounds challenging the demand of duty also which were not found in the original Memorandum of appeal. The learned Counsel appearing on behalf of the appellant submitted that along with the Memorandum of appeal filed on 8-11-1996 the additional grounds taken in the Memorandum of appeal filed in 2002 may also be examined by this Tribunal. We are not able to accept the submission of the appellant that the Memorandum of appeal filed in 2002 has to be treated as an amendment to the appeal filed on 8-11-96. Relief sought in the original appeal relates only to imposition of penalty. We cannot entertain a challenge against the demand of duty, by way of an amendment in the year 2002. The challenge is highly related and no reasons are given to justify any such inordinate delay.
5. Presently we will go into the contention raised in the original Memo of appeal of the year 1996. The main complaint of the appellant is that there was no show cause notice issued before penalty was imposed. On going through the order, we find that the appellant had intimated that they have paid the duty amount of Rs. 2,36,275/-, and that they did not desire any show cause notice or personal hearing in this case. In the circumstances the Adjudicating authority found on merits that the demand of duty of Rs. 2,36/275/- has to be confirmed. A penalty of Rs. 25,000/- was then imposed. We are of the view that in the facts and circumstances of the case, the penalty was unjustified. As far as the short payment is concerned, there was nothing to show that there was deliberate intention on the part of the assessee to evade payment of duty. In the circumstances, we set aside the imposition of penalty in the order impugned. The appeal stands allowed as above. The appellant will be entitled to consequential reliefs.