Commissioner of C. Ex., Bangalore-III vs T.D. Power Systems Pvt. Ltd.

N. Kumar, J.—This appeal is by the revenue challenging the order passed by the Tribunal setting aside the order imposing penalty u/s 11AC of the Central Excise Act, 1944, as not justifiable. The order of the Tribunal consists of two parts. One is a dispute regarding levy of duty. The second portion of the order is a penalty imposed for non-payment of duty. The assessee claimed exemption from payment of duty on the basis of exemption Notification. The dispute is whether the said exemption is available to the assessee or not. It is submitted on behalf of the respondent-assessee as no appeal lies against the order challenging the imposition of duty u/s 35G to this Court, they have preferred an appeal to the Apex Court u/s 35L of the Act, in Civil Appeal No. 4162/2006 which is admitted on 29-9-2006. It is further submitted that the liability to pay penalty depends on the liability to pay duty. Therefore this Court in these proceedings cannot go into the validity of the penalty or order of the Tribunal setting aside the said penalty. Therefore he submits that this appeal also has to be dismissed is not maintainable. In view of the aforesaid facts unless it is held that the duty is leviable the question of going into the correctness of the imposition of penalty or setting aside the order of penalty would not arise. Therefore this appeal also has to be carried to the Apex Court along with the appeal preferred by the assessee challenging the levy of duty. Accordingly, the appeal is rejected reserving liberty to the appellant to prefer an appeal u/s 35L of the Act before the Apex Court.