Central Excise Appeal No. 80 of 2008 1
In the High Court of Punjab & Haryana at Chandigarh
Central Excise Appeal No. 80 of 2008 (O&M)
Date of decision : 18.8.2008
K. S. Uberoi .....Appellant
vs
Commissioner of Central Excise & Customs,
Commissionerate, Delhi-II, and another ..... Respondents
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. O. P. Goyal, Senior Advocate with
Ms. Priya Khurana, Advocate, for the appellant.
Hemant Gupta J.
The present appeal under Section 35 (G) of the Central Excise
Act, 1944 (for short, the Act”), is directed against the order dated 11.4.2008
passed by the Customs, Excise and Service Tax Appellate Tribunal, New
Delhi (for short, “the Tribunal”), arising out of Appeal No. E/3712/2004-
3715/2004.
The appellant is Managing Director of M/s. Kobe Suspension
Company Private Limited. The demand was raised for imposition of penalty
on the company as well on Shri K. S. Uberoi as the Managing Director of
the Company. However, the said order has been set aside against the
aforesaid company and the Managing Director.
There was another firm named M/s. Kavantry Springs
Fabrications Company, a sole proprietorship firm of wife of K. S. Uberoi
namely, Kukky Uberoi. The learned Tribunal vide the impugned order in the
present appeal has found that the imposition of separate penalty on the
proprietor in addition to penalty on the firm is not justified. However, it was
observed that the duty demanded required re-working. The Tribunal found
that penalty on the firm and Shri K.S. Uberoi, who was actually managing
Central Excise Appeal No. 80 of 2008 2
the affairs of the company requires to be reconsidered on the basis of actual
duty evasion worked out. With the said finding, the matter has been
remanded back to the Commissioner, the Adjudicating Authority.
Learned counsel for the appellant has vehemently argued that
the appellant was never served show cause notice by the Adjudicating
Authority in respect of his managing the affairs of the company or that the
penalty was required to be imposed upon him. Therefore, the findings
recorded by the Tribunal are without any show cause notice to the appellant
and thus, violates the principles of natural justice.
We have heard learned counsel for the appellant at length. We
are of the opinion that though show cause notice was not served upon the
appellant in respect of the finding that he was actually managing the affairs
of the firm of which his wife was the sole proprietor nor any notice was
served in respect of imposition of penalty. The fact remains that it was the
appellant who got his statement recorded even with regards to the affairs of
M/s. Kavantry Springs Fabrications Company. Even in the present appeal,
the appellant describes himself to be authorised signatory of M/s. Kavantry
Springs Fabrications Company. The findings recorded by the Tribunal are,
prima-facie, findings so as to enable the Adjudicating Authority to consider
the pleas raised by the appellant and to pass an order in terms of Section 33-
A of the Act. Since there is no final decision in the matter of imposition of
penalty or that the appellant was actually managing the affairs of the
company, it is open to the appellant to raise all possible pleas before the
Adjudicating Authority which shall alone be competent to consider such
pleas and pass final order.
Learned counsel for the appellant has further argued that
Adjudicating Authority while deciding the matter in pursuance of the order
of remand, consequent to the order passed by the Tribunal exercised
materially different jurisdiction from that of adjudicating process to be
exercised by the Authority in terms of Section 33 of the Act.
We do not find force in the said argument as well. When the
Tribunal remanded the matter to the Adjudicating Authority and had given
liberty to it to decide all the questions relevant for the levy of duty or
penalty in terms of the statute. The Adjudicating Authority is to decide the
question of evasion of excise duty and at whose instance. Such Authority
Central Excise Appeal No. 80 of 2008 3
has to comply with the procedure which is required to complied with as
provided under the Act.
In view of the above, the present appeal is disposed of in the
terms indicated above.
(Hemant Gupta)
Judge
18.8.2008 (Rajesh Bindal)
vs. Judge