Shri Banshi Badan Mandal (Director) vs Commr. Of Customs (Port), Kolkata

Customs Excise and Service Tax Appellate Tribunal4 February 2015

Case No.Customs Appeal No. C/247/2012

Ratio decidendi

The rule this decision rests on

A penalty imposed on a party in remand proceedings is set aside where the Tribunal had already decided, in an earlier round of the same litigation, the issue in that party's favour and the adjudicating authority's later imposition of penalty on that party is inconsistent with that earlier decision.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALEAST REGIONAL BENCH : KOLKATAS.P.-955/12ANDCustoms Appeal No. C/247/2012

(Arising out of the Order-in-Original No. KOL/CUS/PORT/38 to 43/2012 dated-06/07/2012 passed by the Commissioner of Central Excise, Kolkata-IV)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

======================================================

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

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

Shri Banshi Badan Mandal (Director) APPELLANT(S) VERSUS Commr. of Customs (Port), Kolkata

RESPONDENT(S)

APPEARANCE

Sri K.K. Sanyal, Consultant FOR APPELLANT(S) Sri K. Chowdhury, Supdt. (A.R.) FOR THE RESPONDENT(S)

CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 4/02/2015

ORDER NO : FO/A/75035/2015 Per DR.D.M. MISRA

This is an application seeking waiver of pre deposit of penalty of Rs.5.00 Lakhs imposed on the applicant under Section 112 (a) of the Customs Act, 1962.

2. At the outset, the Ld. Consultant Shri Sanyal for the applicant submits that in the earlier round of litigation, this Tribunal allowed their appeal vide order No.A-50-51/KOL/2010 dated-03.02.2010. However, while adjudicating the case of other appellants, the adjudicating authority had erroneously imposed penalty against the applicant.

3. Ld. A.R. for the Revenue after examination of the order of this Tribunal confirmed the said fact.

4. After hearing both sides for some time, we find that the appeal itself could be disposed off today. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for disposal with the consent of both sides. We find that this Tribunal has already disposed the appeal vide order No. A-50-51/KOL/2010 dated-03.02.2010. However, while adjudicating the case for other notices in the remand proceedings, the adjudicating authority has imposed penalty on the appellant also. Thus, we do not see any justification for imposition of penalty on the appellant when this Tribunal has already decided the issue in his favour vide order dt.03.02.2010. In the result, the impugned order to the extent of imposition of penalty on the appellant, is set aside and the appeal filed by the appellant is allowed. S.P. disposed off.

(Dictated and pronounced in the open court)

Sd/-05/02/2015 Sd/- 05/02/2015 (I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) k.b/-

Customs Appeal No. C/247/2012

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