2008 (7) TMI 703 - AT - Central Excise

Rectification granted for penalty enhancement and demand confirmation with open penalty decision in remand.

COMMISSIONER OF CENTRAL EXCISE, GOA Versus ZUARI INDUSTRIES LTD.

COMMISSIONER OF CENTRAL EXCISE, GOA Versus ZUARI INDUSTRIES LTD. - 2009 (233) E.L.T. 469 (Tri. - Mumbai) Issues: Rectification of mistake in the order of the Tribunal regarding penalty enhancement and confirmation of demand.The judgment pertains to an application for rectification of mistake filed by the Revenue against the order of the Tribunal dated 19-9-2007. The issue raised by the Revenue is that the Tribunal did not provide any findings or discussion on the appeal filed by the department, which sought to enhance the penalty equivalent to the duty confirmed by the adjudicating authority. The Revenue argued that there was an error apparent on the face of the order that needed rectification. On the other hand, the Counsel for the assessee contended that the order partly allowed the appeal by the assessee through remand and partly upheld the demand confirmation. The Counsel highlighted that the demand confirmation was based on a concession given by the Counsel, as the issue was already settled by the Hon'ble Supreme Court. Therefore, the Counsel argued against imposing any penalty on the confirmed amount upheld by the Tribunal.Upon considering the submissions from both sides and examining the records, the Tribunal acknowledged that the order in question did not provide any findings concerning the appeal filed by the Revenue. Recognizing this as an error on the face of the record, the Tribunal allowed the application for rectification of mistake. Consequently, the Tribunal issued a rectification order on 19-9-2007, inserting specific paragraphs to address the issues raised. Paragraph 6(a) was added to the order, explaining the rationale behind not imposing a penalty equal to the confirmed duty amount upheld by the Tribunal. It was reasoned that since the issue required settlement by the highest court, penalizing the assessee was deemed unnecessary and unwarranted. Additionally, paragraph 8(a) was inserted after paragraph 8 to keep the issue of imposing a penalty on the assessee for the residual nature of the demand confirmation open for decision in the remand proceedings.In conclusion, the Tribunal disposed of the application for rectification of mistake subject to the indicated modifications in the order. The rectification decision was pronounced in court on 21-7-2008.