ORDER
Shri S.L. Peeran, Member (J)
1. This stay application and appeal arise from order in original No.C.Ex.10/97 dt.10.7.97 passed by the Commissioner of Central Excise, Hyderabad by which the Appellants has been imposed penalty of Rs.75 lakhs besides penalty on various other persons and confirmed duty on the company M/s. NASA Continental Exporters Ltd. M/s. NASA and other persons, on whom penalties have been imposed, are not before us in this appeal for consideration. In this matter, the appellants had contended that the impugned order itself is not served on them till 23.10.2000. They had filed a miscellaneous application also seeking for condonation of delay, as an abundant caution as they had filed appeal within three months from the receipt of the order. They had submitted that they had filed the appeal within three months from the date of receipt of the order. The Tribunal had directed the Commissioner to file his report on the appellants submission about the show cause notice not having been served on them and that no personal hearing was also in given to them; that the order was issued only on 23.10.2000. In response to the Tribunal’s direction, the Commissioner filed his report stating that the appellant has not replied to the show cause notice and had not further taken any interest in the matter. However, the department admitted service of order on the appellant with a covering letter of Superintendent of Central Excise dt.10.10.2000. In view of the belated service of notice, the delay in filing of the appeal was condoned by allowing the COD application.
2. Today the Counsel is arguing on the stay application and prayed for waiver of pre deposit of penalty of Rs. 75 lakhs on the appellants who was working with the Company as Vice President (Finance and Operations). The penalty has been imposed under Section 209 A of the Central Excise Act. He relied on the Tribunal judgement rendered in the case of Z.U.Alvi, G.M., Vs,CCE, Bhopal 2000 (36) RLT 721 which has clearly laid down the law with regard to imposing penalty under Rule 209 A of the Central Excise Act. In that case the Commissioner had imposed penalty of Rs.50 crores under Rule 209 A of the CE Act on the General Manager of a Public Sector Unit. Hon’ble President, presiding over the Bench disapproved the action of the Ld. Commissioner in imposing such a huge penalty on the officer of the Company and directed the Secretary (Finance), Department of Revenue to take action in the matter. Therefore, the law as it stands is that in accordance with the Rule 209 A of the Central Excise Act, the terms of Rule 209 A is required to be satisfied before penalty is imposed on any officer of the company. In view of this judgement, the prayer for waiver of pre deposit and stay recovery thereof is granted.
3. The main appeal is taken up for consideration with the consent of both the sides. As there is a clear violation of the principles of natural justice, the impugned order is set aside and the matter is remanded to the Commissioner for de novo consideration with regard to the appellants plea that no penalty under section 209 A of the Central Excise Act is imposable on him in the light if the cited judgement. The Commissioner shall give an opportunity of hearing to the appellant.The appellant is at liberty to file a reply to the show cause notice before the personal hearing. The Commissioner shall decide the case in the light of the judgement referred to by the Tribunal in the case above cited. Ordered accordingly.
(Order dictated and pronounced in the open court)