Commissioner Of Central Excise & S.T., ... vs M/S. Jayesh P. Bhimani

(Arising out of OIA No. 198to200/2006(Ahd-III)CE/DK/Commr(A) dated 29.12.2006, Passed by Commissioner (Appeals) Central Excise & Customs, Ahmedabad)

Commissioner of Central Excise & S.T., Ahmedabad : Appellant (s)

Vs.

M/s. Jayesh P. Bhimani : Respondent (s)

Represented by :

For Assessee : Shri Paritosh Gupta, Advocate

For Revenue : Shri G.P. Thomas, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. R.K. Singh, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. R.K. Singh, Hon'ble Member (Technical)

Date of Hearing / Decision : 12.01.2015

ORDER No. A/10042/2015 Dated 12.01.2015

Per : Mr. P.K. Das;

Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals), whereby a penalty of Rs. 20 Lakh imposed on Shri Jayesh P. Bhimani authorized signatory of M/s. Parshwa Chemicals and M/s. Bhimani Chemicals , Respondent herein, was set-aside.

2. The relevant facts of the case, in brief, are that M/s. Ganesh Chem Tech Pvt. Limited (i.e. main noticee) was engaged in the manufacture of Dye Intermediates and Allied Chemicals and availed cenvat credit on input and capital goods. The Adjudicating authority confirmed demand of CENVAT credit along with interest and imposed penalty on the main noticee on the ground the main noticee was purchasing cenvatable invoices from the registered dealers and availing cenvat credit thereof without receiving inputs in the factory premises. It has also imposed penalty of Rs. 40Lakh and Rs. 20 Lakh on Shri Naresh F. Shah, Director of the main noticee and Shri Jayesh P. Bhimani, Authorised Signatory of the registered dealer (Respondent herein). By the impugned order, Commissioner (Appeals) remanded the matter to the adjudicating authority in respect of main noticee M/s. Ganesh Chem Tech Pvt. Limited and its Director Shri Naresh F. Shah. But, the penalty imposed on the Respondent was set-aside. Hence the Revenue filed this appeal against the setting aside of penalty.

3. Learned AR for the Revenue reiterates the grounds of appeal and submits that Commissioner (Appeals) has remanded the matter in a piece meal, which is not correct. He submits that the case of the main noticee is related to Respondent, who issued invoices. The decision of setting aside the penalty on the respondent, would affect the de-novo proceedings.

4. On the other hand, learned advocate for the respondent submits that Commissioner (Appeals) had given a detailed finding for setting aside the penalty on the respondent. He relied upon various decision of the Tribunal.

5. After hearing both the sides and on perusal of the records, we find force in the submission of the learned AR for the Revenue. We are of the view that penal provisions on the Respondent would be considered after examining all the facts and circumstances of the case in totality of the main noticee. So, while directing the case of the main noticee in de-novo adjudication, it is required to consider the case of the respondent. In view of that, we modify the impugned order to the extent that the adjudicating authority shall also consider the case of the respondent in de-novo proceedings. It is directed that the adjudicating authority during the de-novo adjudication would take into consideration the observation of the Commissioner (Appeals) as well as the submissions made by the learned advocate of the Respondent before the Tribunal.

6. At this juncture, the learned advocate placed the decision in the respondents own case, which would also be considered by the adjudicating authority in de-novo proceedings. We also make it clear that we have not expressed any opinion on the merits of the case. Appeal filed by the Revenue is allowed by way of remand.

(Dictated and pronounced in the Court)

(R.K. Singh) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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