Jyothy Laboratories Ltd. Vs. Commissioner of Central Excise - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149244
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Chennai
Decided OnMay-06-2014
Case NumberAppeal No.E/S/40887 of 2014 & E/40671 of 2014 [Arising Out of Order-in-Appeal No.03/2014 (P) (D) dt. 3.1.2014 passed by the Commissioner of Central Excise (Appeals), Chennai]
JudgePRADIP KUMAR DAS, JUDICIAL MEMBER
AppellantJyothy Laboratories Ltd.
RespondentCommissioner of Central Excise
Excerpt:
central excise act, 1944 - section 11a(1); pradip kumar das, j. 1. as the issue lies in a narrow compass, after disposing the stay application, the appeal is taken up for hearing. 2. heard both sides and perused the records. the learned counsel submits that the adjudicating authority dropped the show cause notice. revenue filed appeal before the commissioner (appeals). he submits that, by the impugned order, the commissioner (appeals) set aside the adjudication order and allowed the department's appeal without determination of duty along with interest and penalty. he submits that there is no determination of duty and therefore the impugned order is not sustainable. 3. on the other hand, ld. a.r on behalf of revenue submits that appellant had not clearly stated as to whether they have challenged the penalty as proposed in the scn. 4. after hearing both sides and on perusal of records, i find that by show cause notice dt. 17.2.2011, it was proposed to recover wrongly availed credit of rs.40,26,495/- under rule 14 of the cenvat credit rules, 2004 read with section 11a(1) of the central excise act, 1944 along with interest and penalty. the adjudicating authority set aside the proceedings initiated under scn dt. 17.4.2011. revenue filed appeal before the commissioner (appeals). by the impugned order, the commissioner (appeals) set aside the adjudication order and the departments appeal is allowed. section 11a(1) of the central excise act provides recovery of duty not levied or not paid or short paid or erroneously refunded. sub section (1) of section 11a provides that a central excise officer may serve notice to the person chargeable with the duty which has not been paid. sub-section (2) of section 11a as it stood at the relevant time, provides that the central excise officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1) of section 11a, determine the amount of duty of excise from such person. so, unless the duty is determined under the provisions of the act, the demand of duty as proposed in notice cannot be recovered. in the present case, it is seen that the adjudicating authority dropped the show cause notice. commissioner (appeals) had not determined the demand of duty under the provision of law. in any event, by the impugned order, the adjudication order is set aside by commissioner (appeals) and therefore the show cause notice would survive. accordingly, the impugned order is set aside and the matter is remanded to the commissioner (appeals) to be decided afresh in accordance with law. commissioner (appeals) shall give proper opportunity of hearing before decision. the appeal is allowed by way of remand. stay application is disposed of.
Judgment:

Pradip Kumar Das, J.

1. As the issue lies in a narrow compass, after disposing the stay application, the appeal is taken up for hearing.

2. Heard both sides and perused the records. The learned counsel submits that the adjudicating authority dropped the show cause notice. Revenue filed appeal before the Commissioner (Appeals). He submits that, by the impugned order, the Commissioner (Appeals) set aside the adjudication order and allowed the department's appeal without determination of duty along with interest and penalty. He submits that there is no determination of duty and therefore the impugned order is not sustainable.

3. On the other hand, Ld. A.R on behalf of Revenue submits that appellant had not clearly stated as to whether they have challenged the penalty as proposed in the SCN.

4. After hearing both sides and on perusal of records, I find that by show cause notice dt. 17.2.2011, it was proposed to recover wrongly availed credit of Rs.40,26,495/- under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944 along with interest and penalty. The adjudicating authority set aside the proceedings initiated under SCN dt. 17.4.2011. Revenue filed appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) set aside the adjudication order and the departments appeal is allowed. Section 11A(1) of the Central Excise Act provides recovery of duty not levied or not paid or short paid or erroneously refunded. Sub section (1) of Section 11A provides that a Central Excise Officer may serve notice to the person chargeable with the duty which has not been paid. Sub-section (2) of Section 11A as it stood at the relevant time, provides that the Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1) of Section 11A, determine the amount of duty of excise from such person. So, unless the duty is determined under the provisions of the Act, the demand of duty as proposed in notice cannot be recovered. In the present case, it is seen that the adjudicating authority dropped the show cause notice. Commissioner (Appeals) had not determined the demand of duty under the provision of law. In any event, by the impugned order, the adjudication order is set aside by Commissioner (Appeals) and therefore the show cause notice would survive. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to be decided afresh in accordance with law. Commissioner (Appeals) shall give proper opportunity of hearing before decision. The appeal is allowed by way of remand. Stay application is disposed of.