Commissioner of C. Ex. and Cus. vs Palav Synthetics

H.N. Devani, J.—The appellant revenue has challenged order dated 12-1-2009 [2009 (238) E.L.T. 323 :1992 (61) E.L.T. 352 (S.C.) (Tribunal)] made by Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions:

(A) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in modifying the order passed by the appellate commissioner to the extent of reduction of penalty @ 25% of duty amount, imposed upon the respondent by the adjudicating Assistant Commissioner and confirmed by the Appellate Commissioner?

(B) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in exercising its discretion without recording any finding for reduction of penalty imposed upon the respondent u/s 11AC of the Central Excise Act, 1944?

Pursuant to show cause notice dated 20-12-2004, duty came to be confirmed along with interest and penalty. The respondent being aggrieved preferred appeal before the Commissioner (Appeals) which came to be dismissed. The respondent-assessee carried the matter in Second Appeal before the Tribunal which came to be dismissed vide the impugned order. While dismissing the appeal the Tribunal observed as follows:

However, as regards penalty u/s 11AC, if the appellants make the payment of duty, interest and penalty within 30 days of the communication of this order, the penalty will stand reduced to 25% of the duty.

Revenue being aggrieved by the aforesaid observations, has preferred the present appeal.

The Senior Advocate for the appellant revenue contended that the order of the Tribunal insofar as the same directs that penalty u/s 11AC will stand reduced to 25% of the duty if the respondent makes payment of duty, interest and penalty within 30 days of the communication of the said order, is a non-speaking order. It was argued that no contention had been raised on behalf of the respondent assessee qua the quantum of penalty. In the circumstances, in'' absence of any such contention having been raised by the respondent as well as considering the fact that the amount of duty, along with interest and penalty had not been paid within a period of thirty days of the Order-In-Original, the Tribunal could not have granted the benefit of reduced amount of penalty.

It is an accepted position that the directions issued by the Tribunal are in consonance with the decision of a co-ordinate Bench of this High Court rendered on 21-1-2010 in the case of Commissioner of Central Excise & Customs v. Rama Synsilk Mills Pvt. Ltd. in Tax Appeal No. 1942 of 2008 Commissioner of C. Ex. and Customs Vs. Rama Synsilk Mills P. Ltd., In the circumstances, it is not possible to state that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference.

In absence of any question of law, much less a substantial question of law, the appeal is dismissed.