Commissioner Of C. Ex., New Delhi vs Maurya Udyog Limited

1. The appeal is filed against the order of Customs, Excise and Gold (Control) Appellate Tribunal dated 28th Eebruary, 2001.

2. The facts briefly stated are that :-

3. Against the order of the Commissioner (Appeals), both the Department as well as the assessee viz. respondent filed appeals. The appeal filed by the assessee came to be dismissed for default. Against the order of dismissal, an appeal was carried to this Court. This Court by the judgment dated 16th August, 2002 has remitted the matter back to the CEGAT for being decided on merits in accordance with law. That appeal is now pending before CEGAT.

4. In the Department's appeal the contention was that the penalty, to be imposed under Section 11AC of the Central Excise Act, 1944, had to be equal to the amount of duty. According to the Department the penalty amount cannot be reduced. The Department's appeal came to be dismissed by the Tribunal by the impugned order. The impugned order is based on a decision of the Tribunal in Escorts JCB Limited v. Commissioner of Central Excise, New Delhi (reported in 2000 (118) E.L.T. 650).

5. By a judgment dated 24th October, 2002 in Civil Appeal No. 7230 of 1999 this Court has held that the sale is at the premises of the assessee and, therefore, transit insurance and freight are not to be added to the value of the goods sold. This Civil Appeal was against the Tribunal's order in Escorts JCB Limited case (supra). The question whether penalty amount can be reduced or not has not been decided.

6. In the assessee's appeal, which is pending before the CEGAT, Tribunal will have to decide whether or not duty and penalty are to be paid. If it is held that duty is not payable then the question whether penalty has to be equal to the amount of duty or not would become academic. As the assessee's appeal is pending before the Tribunal, we do not wish to express any opinion. This question of law is left open. We clarify that the pending appeal shall be decided on its merits. Parties will be at liberty to urge all contentions available to them in law, We dispose of this appeal with the above directions.