(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) This Appeal under Section 35[G] of the Central Excise Act, 1944 ["the Act"] is at the instance of the revenue and is directed against an order dated March 11, 2011 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad ["the Tribunal"], thereby partly allowing the appeal preferred by the respondent before us.
The following facts are not in dispute:
Factory of the respondent was visited by the Central Excise officers on July 16, 2003 who conducted various checks and verification and stock of finished product was found to be in excess entered in the RG-1 register. The said final products were in "ready to dispatch condition".
Proceedings were initiated against the respondent herein, on the above ground which culminated into an order passed by the original adjudicating authority vide which the said proceedings were dropped. However, on an appeal against such order before the Commissioner [Appeals], the appellate authority remanded the matter to the original adjudicating authority directing him to confiscate the goods on payment of redemption fine and impose penalty upon the respondent. The appellate authority, however, held that inasmuch as the goods were provisionally released, entered in RG-1 register and cleared on payment of duty subsequently, no duty was required to be confirmed.
However, on remand, the original adjudicating authority again confirmed the demand of duty, imposed redemption fine of Rs. 50,000/- and penalty of Rs. 2,44,885/- which was equivalent to the duty involved.
An appeal was preferred before the Commissioner [Appeals], but the same was unsuccessful and hence the respondent preferred an appeal before the Tribunal below.
In such appeal, the Tribunal was of the view that in the first round of litigation, the Commissioner [Appeals] having specifically observed that duty was not required to be confirmed and the same had already stood paid on seized goods, the Tribunal set aside the duty confirmation against the respondent herein. As regards the redemption fine, the Tribunal upheld the fine of Rs. 50,000.
Lastly, as regards penalty, the Tribunal was of the opinion that imposition of penalty to the extent of 100% of duty involved was not warranted in the facts of the said case and the same was not a case of imposition of 100% penalty under Section 11AC of the Act, but it came in terms of Rule 25 of the Central Excise Rules. By taking into consideration the overall facts and circumstances of the case, the Tribunal reduced the penalty to Rs. 50,000/-.
Being dissatisfied, the revenue has come up with the present Appeal.
As regards the first question indicated above, we are in agreement with the finding of the Tribunal below that in the first round of litigation, the Commissioner [Appeals] having specifically found that the duty was not required to be confirmed, the duty confirmed in the second round was liable to be set aside.
As regards the imposition of penalty, the Tribunal having exercised its discretion in reducing the penalty to Rs. 50,000/-, we do not find any reason to interfere with such discretion which is otherwise not perverse or in violation of any of the statutory provisions.
We thus find that no substantial question of law is involved in this Appeal and consequently, the same is dismissed.
[BHASKAR BHATTACHARYA, ACTING CJ.] [J.B.PARDIWALA, J.] pirzada/-
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