JUDGMENT
G.N. Srinivasan, Member (J)
1. The captioned reference applications seek reference under Section 35(G)(1) of the Central Excise Act the following question of law to the Hon’ble Gujarat high Court:
“In a case where goods were chargeable too Additional duties of Excise (Goods of Special Importance) Act, 1957, (for short ‘the Additional Duties Act’), whether the imposition of penalty and levying of fine in lieu of confiscation under Central Excise Act, 1944 was unlawful, when Section 3 of the Additional duties Act is expressive enough to make all provisions of Central Excise Act and Rules applicable, if levy and – Collection of duties of excise?”
2. In the impugned order, the question involved is of levy of penalty of Rs. 10,000/- on the assessee for violation of the provisions of Additional Duties of Excise (Goods of Special Importance) Act, 1957. The tribunal by its order dated 23.10.1998 following the judgment of the Delhi High Court in the case of Pioneer Silk Mills (1995 (80) ELT 507) held that the penalty cannot be levied and allowed the appeals.
3. The ld. DR. Shri Virag Gupta arguing for the department states that in the Maheshwai Mills case the Hon’ble Gujarat High Court has held otherwise. In my view, the reference to the Maheshwari Mills’ case for deciding the appeals was not relevant the levy of duty under the Textiles Act, not under the additional Duties of Excise (Goods of Special Importance) Act, 1957. However, the Gujarat High Court has allowed the reference application of the department in the case of M/s. Gomti Processors. Hence, following the said order, I refer the above question of law for the opinion of the Gujarat High Court.
4. In this case by order dated 22.04.1998 the ld. Collector, Cen. Ex. & Customs, Ahemdabad had confirmed the penalty of Rs. 10,000/- on K.R. Sisodiya. Against this order, appeals was filed and the Tribunal by the impugned order following the judgment of the Delhi High Court held in favour of the assessees. Hence, the present reference application, which is allowed. The registry is directed to send copies of the show cause notices as well as the impugned order, along with this order.
5. Reference application is allowed.
(Dictated in Court)