Commissioner of Central Excise Vs. Hyva Transportation Systems Pvt.

Commissioner of Central Excise vs Hyva Transportation Systems Pvt.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Apr 12, 2004

~2 min read

https://sooperkanoon.com/case/34917

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/34917
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A M Moheb
Decided On: Apr 12, 2004
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Hyva Transportation Systems Pvt.

Excerpt

.....under section 11ac indicates the maximum amount that can be imposed and is not mandatory. the decision of the commissioner (appeals) cannot be faulted.3. the respondents, in their cross objections, challenged the order of the commissioner (appeals) on the ground that the commissioner erred in retaining any penalty at all in their case as they paid the entire duty even before a show cause notice was issued. the learned consultant relied on the cegat's decision in rashtriya ispat nigam ltd v. cce, vishakhapatnam 2003 (161) elt 285 wherein the bench held that penalty is not imposable under section mac of the central excise act 1944 as well as under rule 173q of the erstwhile central excise rules when duty is deposited before the issue of show cause notice. this decision attained finality when an appeal filed by the department against this decision was dismissed by the hon'ble supreme court on 7.5.2003.4. i have gone through the rival contentions. the order of the lower adjudicating authority clearly brings out that the respondents had deposited the duty arising out of the two issues - non return of inputs removed from the unit within 180 days and inclusion of transport charges in the assessable value - much before the issue of show cause notice. following the decision cited supra, i agree with the contention of the respondents and set aside the order of the commissioner (appeals) with consequential relief insofar as imposition of penalty is concerned.5. the revenue appeal is rejected. the respondents' cross objections are allowed and the order of the commissioner (appeals) is set aside.

Full Judgment

1. This appeal is by the Revenue against the order of the Commissioner (Appeals). Cross objections are filed by the respondent who is also aggrieved by the order of the Commissioner (Appeals).

2. The Revenue appeal is on the ground that the Commissioner (Appeals) erred in reducing the penalty imposed by the original authority under Section 11 AC. The Revenue contends that penalty under Section 11 AC is mandatory and should not be less than the amount of duty sought to be evaded. The Commissioner (Appeals) erred, it was argued, while he reduced the penalty. This issue is settled inasmuch as this Tribunal held that penalty under Section 11AC indicates the maximum amount that can be imposed and is not mandatory. The decision of the Commissioner (Appeals) cannot be faulted.

3. The respondents, in their cross objections, challenged the order of the Commissioner (Appeals) on the ground that the Commissioner erred in retaining any penalty at all in their case as they paid the entire duty even before a show cause notice was issued. The learned consultant relied on the CEGAT's decision in Rashtriya Ispat Nigam Ltd v. CCE, Vishakhapatnam 2003 (161) ELT 285 wherein the Bench held that penalty is not imposable under Section MAC of the Central Excise Act 1944 as well as under Rule 173Q of the erstwhile Central Excise Rules when duty is deposited before the issue of show cause notice. This decision attained finality when an appeal filed by the department against this decision was dismissed by the Hon'ble Supreme Court on 7.5.2003.

4. I have gone through the rival contentions. The order of the lower adjudicating authority clearly brings out that the respondents had deposited the duty arising out of the two issues - non return of inputs removed from the unit within 180 days and inclusion of transport charges in the assessable value - much before the issue of show cause notice. Following the decision cited supra, I agree with the contention of the respondents and set aside the order of the Commissioner (Appeals) with consequential relief insofar as imposition of penalty is concerned.

5. The Revenue appeal is rejected. The respondents' cross objections are allowed and the order of the Commissioner (Appeals) is set aside.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Hyva Transportation Systems... Same Subject Excise Same Judge A M Moheb