Judgment:
1. Common issue involved in these appeals and, therefore, both are taken up together for disposal. This issue relates to imposition of mandatory penalty
2. The facts of the case, in brief, are that the respondents are engaged in the manufacture of Compressed Industrial Oxygen classifiable under Heading 2804.19 of the Central Excise Tariff Act, 1985 and availed benefit of SSI exemption, which was denied on the ground that the respondents used the brand name INOX of other person. Adjudicating authority modified demand of duty and confirmed a portion of duty as proposed in the show-cause notice and also imposed penalty of equal amount under Section 11AC. The respondent filed appeal before Commissioner (Appeals) against the imposition of mandatory penalty. Revenue also filed appeal against the Adjudication order before the Commissioner (Appeals) in so far as for confirmation of entire amount of demand of duty as proposed in the show-cause notice. Commissioner (Appeals) decided the respondents appeal and reduced the amount of penalty. Subsequently, Commissioner (Appeals) dismissed the appeal filed by the Revenue on the ground that he has already decided the respondents appeal and, therefore, the adjudication order has been merged with the earlier Order-in-Appeal. Now, two appeals have been filed by the Revenue against those two orders passed by Commissioner (Appeals) Ltd.
3. Heard both sides and perused the records.
4. After hearing both sides and on perusal of records, I find that there is a decision of the Tribunal in the case of Commissioner of Central Excise, Vishakhapatnam-I Vs M/s. Andhra Pradesh Industrial Gases Ltd. reported in 2006-TIOL-501-CESTAT-BANG., held in favour of the assessee as contended by the learned Counsel for the Respondent. In my considered view, the matter is required to be examined by Commissioner (Appeals) in the light of the decision of the Tribunal and the Boards Circular. Hence, I set aside both the orders passed by Commissioner (Appeals) and the matters are remanded to Commissioner (Appeals) to decide afresh after considering the case laws, Boards Circular and any other submissions, if any. I make it clear, this order is passed without expressing any view on merits. Both the appeals filed by the Revenue are allowed by way of remand.