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2010 DIGILAW 314 (KAR)

Commissioner of Custom v. Sai Lakshmi Industries Pvt. Ltd.

2010-03-11

B.V.NAGARATHNA, K.L.MANJUNATH

body2010
JUDGMENT B.V. Nagarathna, J.— The Revenue has filed this appeal by challenging the order dated 4-7-2005 passed in appeal No. 430/2003 by Final Order No. 1102/2005. 2. The relevant facts of the case are that the respondent is a 100% export oriented unit being engaged in the manufacture of cotton yarn which is cleared for export as well as for Domestic Tariff Area (DTA clearances) on the basis of the permission given by the Central Government. It had availed the benefit of exemption of notifications in respect of DTA clearances. In order to avail the said benefit, according to the Revenue, it had suppressed that the cotton used for manufacture was not entirely out of indigenous raw materials and has erroneously availed the benefit under notification dated 1-3-1997 and notification dated 2-6-1998 while discharging duty on DTA clearances. Since there was suppression of facts, according to the Revenue, a show cause notice was issued to the respondent and thereafter, penalty proceedings under Section 11AC of the Central Excise Act, 1944 (hereinafter referred to as 'the Act') read with Rule 209 and 210 of the Central Excise Rules, 1944 were commenced and the respondent-authorities levied penalty by Order-in-Original No. 13/2003 dated 29-3-2003 by confirming the demand made under Section 11A of the Act. Aggrieved by the above, the respondent had preferred an appeal before the Commissioner of Appeals who by his order dated 15-12-2003 had reduced the penalty. Against the said order, the respondent filed an appeal before the CESTAT and the CESTAT by its order dated 4-7-2005 has allowed the appeal filed by the Revenue and has set aside the levy of penalty and interest on the ground that the respondent had paid the duty before issuance of the show cause notice. The said order is in challenge in this appeal. 3. We have heard the learned Counsel for the appellant-Revenue and the learned Counsel for the respondent-assessee and perused the material on record. 4. Though the Tribunal has set aside the levy of penalty and interest, we find on perusal of the said order, no reasons have been assigned as to why the levy of penalty and interest have to be set aside. 4. Though the Tribunal has set aside the levy of penalty and interest, we find on perusal of the said order, no reasons have been assigned as to why the levy of penalty and interest have to be set aside. In fact, there is no discussion of the factual aspects of the matter and merely because the assessee has admitted its fault and has paid the duty before issuance of the show cause notice, the said levy has been set aside without opining as to whether the same could be done under the provisions of the statute or any other provision of law or on the basis of a decision of the Apex Court or any other Court. In fact, para 4 of the Tribunal's order, in our view, is vague in the sense that it does not refer to the decisions on which reliance has been placed to set aside the levy of penalty and interest nor any provision of law. Under the circumstances, we deem it proper to remit the matter to the Tribunal to reconsider the entire issue in the light of the relevant provisions of law and the judgments of the various courts and then come to a conclusion as to whether the respondent-assessee is entitled to waiver of penalty and interest. 5. For the aforesaid reasons, the impugned order is set aside and the matter is remitted back to the Tribunal to dispose of the same in the light of the aforesaid observations and in accordance with law within a period of six months from the date of receipt of the copy of this order.