Commissioner of Central Excise Vs. Aswm Spinning Mills

Commissioner of Central Excise vs Aswm Spinning Mills

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Jul 28, 2004

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Citation: sooperkanoon.com/36079
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: P Bajaj
Decided On: Jul 28, 2004
Subject: Service Tax

Case Summary

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

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Aswm Spinning Mills

Legal References

Reported In: (2004)(173)ELT57TriDel

Excerpt

.....sought increase in the penalty amount which the commissioner (appeals) had reduced from rs. 50,000/- to rs. 2,000/-.2. the respondents have also filed cross objections seeking setting aside even the duty amount as well as penalty in toto.4. the facts are not much in dispute. the respondents during august, 99 availed credit of rs. 4,39,623/- on the strength of photocopy of duplicate copy of the bill of entries. when the jurisdictional range office of the central excise pointed out to the respondents that the credit has been wrongly availed by them, they deposited the amount along with interest on 28-10-1999. still the show cause notice was issued to them on 24-11-1999. the adjudicating authority confirmed the demand and imposed penalty of rs. 50,000/- on the respondents. they, however, filed appeal against that order before the commissioner (appeals) wherein they only challenged the imposition of penalty and not the confirmation of duty. the commissioner (appeals) has reduced the penalty to rs. 2,000/-. the revenue through the present appeal has sought enhancement in the penalty amount, while the respondents have prayed for setting aside even the duty confirmed, besides penalty, through the cross-objections.5. so far as the confirmation of duty is concerned, the same cannot be questioned by the respondents through the present cross-objections as they did not dispute the confirmation of duty, against them, by the adjudicating authority, in their appeal before the commissioner (appeals), as they only sought setting aside of the penalty. the commissioner (appeals) has reduced the penalty to rs. 2,000/-. but since the duty was deposited by the respondents before the issuance of the show cause notice, this much penalty could not be even confirmed against them, in view of the law laid down by the larger bench of the tribunal in the case of cce, delhi-iii v. machine montell (i) ltd. - 2004 (168) e.l.t. 466. in the light of this larger bench's judgment the plea of the.....

Full Judgment

1. In this appeal, the Revenue has sought increase in the penalty amount which the Commissioner (Appeals) had reduced from Rs. 50,000/- to Rs. 2,000/-.

2. The respondents have also filed cross objections seeking setting aside even the duty amount as well as penalty in toto.

4. The facts are not much in dispute. The respondents during August, 99 availed credit of Rs. 4,39,623/- on the strength of photocopy of duplicate copy of the bill of entries. When the jurisdictional range office of the central excise pointed out to the respondents that the credit has been wrongly availed by them, they deposited the amount along with interest on 28-10-1999. Still the Show cause notice was issued to them on 24-11-1999. The adjudicating authority confirmed the demand and imposed penalty of Rs. 50,000/- on the respondents. They, however, filed appeal against that order before the Commissioner (Appeals) wherein they only challenged the imposition of penalty and not the confirmation of duty. The Commissioner (Appeals) has reduced the penalty to Rs. 2,000/-. The Revenue through the present appeal has sought enhancement in the penalty amount, while the respondents have prayed for setting aside even the duty confirmed, besides penalty, through the cross-objections.

5. So far as the confirmation of duty is concerned, the same cannot be questioned by the respondents through the present cross-objections as they did not dispute the confirmation of duty, against them, by the adjudicating authority, in their appeal before the Commissioner (Appeals), as they only sought setting aside of the penalty. The Commissioner (Appeals) has reduced the penalty to Rs. 2,000/-. But since the duty was deposited by the respondents before the issuance of the show cause notice, this much penalty could not be even confirmed against them, in view of the law laid down by the Larger Bench of the Tribunal in the case of CCE, Delhi-III v. Machine Montell (I) Ltd. - 2004 (168) E.L.T. 466. In the light of this Larger Bench's judgment the plea of the Revenue for enhancement of the penalty also cannot be entertained and accepted. Rather, the impugned order in respect of the imposition of penalty against the respondents cannot be sustained and is hereby set aside.

6. Consequently, the appeal of the Revenue is rejected and the cross-objections filed by the respondents are partly accepted in respect of penalty only.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Commissioner of Central Excise vs Aswm Spinning Mills Same Subject Service Tax Same Judge P Bajaj