Commissioner Of Central Excise vs Asian Paints (I) Ltd

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal Nos.E/140, 141/2004 & E/CO/80 & 81/2004

[Arising out of Order-in-Appeal No.574 & 575/2003 (Pondicherry) dt. 14.11.2003 passed by the Commissioner of Central Excise (Appeals), Chennai]

Commissioner of Central Excise, Pondicherry Appellant

Versus

Asian Paints (I) Ltd. Respondent

Appearance:

Shri B. Balamurugan, AC (AR) For the Appellant

Shri V. Panchanathan, Advocate For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 26.5.2015

FINAL ORDER No.40577-40578/2015

Per R. Periasami

Revenue filed these appeals against waiver of penalty by the Commissioner (Appeals) vide impugned Order-in-Appeal No.574 & 575/2003 dt. 14.11.2003.

2. Heard both sides.

3. Ld. Advocate for the respondent submits that respondent unit is located at Cuddalore in the State of Tamil Nadu and the adjudication order dt. 17.7.2000 and 29.1.2002 confirmed differential duty and also imposed penalty. In the impugned order, Commissioner (Appeals) has waived the penalty. The respondents also filed appeal against the said order before CESTAT, Mumbai Bench.

4. Ld. Advocate submitted a copy of the Tribunal order passed by Mumbai Bench Order No. A/736-737/11/EB/C-II dt. 2.8.2001. On perusal of the said Tribunal's order, we find that the Tribunal has set aside the impugned order and remanded the case to Commissioner (Appeals). The relevant paragraph of the Tribunal's order is reproduced as under :-

"6. After hearing both the sides, we find that although it is a situation of revenue neutrality but the appellants have paid the duty under-protest and are contesting the charge of under valuation. Therefore, the method adopted by Commissioner (Appeals) in passing the order is not correct. Hence, the matter needs examination by the commissioner (Appeals) on merits. Therefore, we are of the opinion that the matter is to be sent back to the Commissioner (appeals) to pass a speaking order on merits of the case. We, further find that the period involved is April 1994 to June 2000, and it being an old matter, the Commissioner (Appeals) shall decide the matter within 4 months of the receipt of this order after giving a reasonable opportunity to the appellants to present their case. It is pertinent to mention that the appellant shall co-operate with the Commissioner (Appeals) in passing the orders."

It is seen that co-ordinate Bench of this Tribunal has already set aside the impugned Order No.574 & 575/2003 dt. 14.11.2003 and the case was remanded to Commissioner (Appeals) to pass a speaking order on valuation on merits. We see from above Tribunal's order that respondent was represented by Shri V.K. Agarwal, SDR. Taking into consideration that the co-ordinate Bench has already set aside the impugned order and remanded the case to Commissioner (Appeals). Revenue's appeal against the very same impugned order seeking for imposition of penalty becomes infructuous. Accordingly, both the Revenue's appeals are rejected. The cross-objections filed by respondent being in the nature of reply/comments to Revenue's appeal, the same are disposed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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