M/S. Professional Investment ... vs Cce, Tirunelveli
- Case No.Appeal No. ST/40290/2014
Ratio decidendi
The rule this decision rests on
Where a penalty under section 76 of the Finance Act, 1994 is at issue and the Commissioner (Appeals) passed an ex parte order, the question whether the assessee is entitled to immunity from that penalty under section 80 of the Finance Act, 1994 is a live question which the adjudicating authority must examine, after affording the assessee a reasonable opportunity of hearing. Where a High Court has directed that a limited issue be examined, the appellate authority may confine remand to that issue alone, and no other issues are open for determination on remand.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No.254/2013 dated 11.12.2013 passed by the Commissioner of Central Excise (Appeals), Madurai)
M/s. Professional Investment Corporation Appellant
Vs.
CCE, Tirunelveli Respondent
Appearance
Shri M. Kannan, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent
CORAM
Honble Shri D.N. Panda, Judicial Member
Date of Hearing / Decision: 30.10.2015
Final Order No. 41652 / 2015
Learned counsel submits that by the time the Commissioner (Appeals) has passed the order that is on 11.9.2013, order of the Honble High Court of Madras in CMA No. 868/2012 had not come. That order came on 22.1.2014. Honble Court recorded that while Tribunal holding assessee was liable to penalty under section 76 of the Finance Act, 1994, Commissioner (Appeals) had recorded that appellant is liable to penalty under section 78 of the Finance Act, 1994. Once the Tribunal has reached to the conclusion properly, the order of the Commissioner (Appeals) having merged with that order there shall not be controversy as to which penalty shall be leviable. Honble High Court held that the Tribunal has enormous power to pass suitable order. Therefore, as comes out from the order of the Honble High Court, there shall be no penalty under section 78 at all.
2. It is further prayer that if section 76 is applicable, Honble High Court has also granted opportunity to the appellant to contest whether such a penalty is considerable under section 80 of the Finance Act, 1994.
3. In view of the above, it is the contention on behalf of the appellant that the Commissioner (Appeals) having passed the order exparte, grievance of the appellant needs re-examination in the light of section 80 of the Finance Act, 1994.
4. Revenue supports that Commissioner (Appeals) has passed proper order.
5. Heard both sides and perused the records.
6. Consequent upon the direction of the Honble High Court of Madras as stated above, it is only the necessity to examine whether the appellant shall get immunity under section 80 of the Finance Act, 1994 against penalty under section 76 of the above said Act since Tribunal in the last occasion had not favoured levy of penalty under section 78 of that Act. The order passed by learned Commissioner (Appeals) being exparte it would be preferable to send the matter to the adjudicating authority to examine only on the limited issue of penalty if leviable under section 76 of Finance Act, 1994 whether shall enjoy immunity under section 80 thereof, hearing the appellant affording reasonable opportunity and pass appropriate order.
7. It is made clear that no other issues are open except the limited issue of immunity under section 80 of the Finance Act, 1994 in respect of penalty under section 76 of the said Act. Consequently, appeal is remanded to the adjudicating authority.
(Dictated and pronounced in open court)
(D.N. Panda) Judicial Member
Ksr/Rex
3
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