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TAXAP/1832/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1832 of 2008
=========================================
COMMISSIONER
OF CENTRAL EXCISE - Appellant(s)
Versus
NANDESHWARI
PACKAGING - Opponent(s)
=========================================
Appearance :
MR
YN RAVANI for
Appellant(s) : 1,
MR PARESH M DAVE for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 03/03/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
The
appellant revenue has proposed following question stated to
arise out the order dated 14.5.2008 made by the Customs, Excise &
Service Tax Appellate Tribunal (the Tribunal).
Whether
the Hon’ble CESTAT has correctly rejected the appeal, which was for
imposing/enhancing the penalty equal to duty evaded under Section
11AC of the Central Excise Act, 1944, without considering the
facts/merits of the case i.e. clandestine removal?
Heard
learned counsel for the appellant. The averments made in the
memorandum of appeal have been reiterated.
As
can be seen from the facts on record against Order-in-Original made
by Joint Commissioner on 25.11.2005, the respondent assessee
carried the matter before Commissioner (Appeals) challenging both
the duty demand of Rs.5,14,149/- and levy of penalty of
Rs.3,00,000/- under Section 11AC of the Central Excise Act, 1944.
Vide
order dated 15.6.2006, Commissioner (Appeals) not only quashed the
demand, but also held that penalty was not leviable. The said order
made by Commissioner (Appeals) was challenged by revenue before the
Tribunal and departmental appeal came to be dismissed by the
Tribunal vide order dated 17.1.2008.
It
appears that revenue filed appeal against Order-in-Original seeking
enhancement of the penalty levied by the adjudicating authority.
Commissioner (Appeals) dismissed the said appeal, holding that the
Order-in-Original stood merged with order made by Commissioner
(Appeals) on 15.6.2006 and as entire penalty had already been
cancelled, the appeal for enhancement had been rendered infructuous.
In the impugned order, the Tribunal has confirmed the order made by
Commissioner (Appeals) and dismissed the departmental appeal.
Learned
advocate for the appellant revenue was not in a position to dispute
the aforesaid factual position. Hence, the proposed question does
not arise out of the impugned order of Tribunal, nor is it possible
to state that any other substantial question of law arises from the
impugned order of Tribunal.
The
appeal is, accordingly, dismissed with no order as to costs.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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