2017 (12) TMI 1287 - AT - Central Excise

Tribunal rectifies mistake, no penalty imposed under Section 11AC, Revenue's appeal allowed

The Tribunal granted rectification of the mistake in the final order and held that no penalty under Section 11AC was imposable on the applicant due to a ... Rectification of mistake - Revenue submits that at the time of hearing of appeal, the appellants have not submitted any evidence that the Revenue’s appeal is pending and was heard, therefore, the material which was not placed during the hearing - Held that: - It appears that the Ld. Counsel has misguided the applicant for her gross negligency. It clearly appears that the Counsel was not even aware of the other appeals filed by the appellant at the time of hearing of the Appeal No.E/222/2006 of the Revenue - it is a fact on record that the order in Appeal No.E/222/2006 was on the issue of imposition of penalty under Section 11AC whereas the demand of duty and penalty has been set aside by this Tribunal vide order dated 02/01/2007 in Appeal No.E/4172/2005. Therefore, there was no question of imposition of any penalty. This is a strong reason for rectification of the order dated 28/02/2017 in Appeal No.E/222/2006 - ROM application allowed. Issues: Rectification of mistake in final order, imposition of penalty under Section 11ACRectification of mistake in final order:The application for rectification of mistake in the final order was made by the applicants based on the grounds that the CESTAT did not consider their request to adjourn the matter until the outcome of another appeal directly connected to the present appeal. The applicants argued that the penalty confirmed in the final order should have been set aside as the demand itself was not sustainable in law as per a previous CESTAT order. The Revenue, represented by the Assistant Commissioner, argued that the appellants did not submit any evidence during the hearing to show that the Revenue's appeal was pending and had been heard. The Tribunal rejected the appellant's claim, stating that the Counsel for the appellant had not provided any evidence or submission to support their claim of the pending appeal. The Tribunal found that the Counsel was negligent and not aware of other appeals filed by the appellant. However, the Tribunal noted that the order in the other appeal had set aside the demand of duty and penalty, making the imposition of penalty under Section 11AC in the present appeal incorrect. Therefore, the Tribunal held that no penalty was imposable on the applicant, and the appeal was allowed.Imposition of penalty under Section 11AC:The Tribunal found that the imposition of penalty under Section 11AC in the final order was incorrect since the demand had already been set aside in a previous CESTAT order. The Tribunal noted that the order in the other appeal was pronounced before the order in the present appeal, and the Counsel failed to submit a copy of the previous order for consideration. The Tribunal concluded that there was no basis for imposing any penalty under Section 11AC in the present appeal due to the earlier order setting aside the demand. Consequently, the Tribunal allowed the appeal and held that no penalty was imposable on the applicant.In conclusion, the Tribunal granted the rectification of the mistake in the final order and held that no penalty under Section 11AC was imposable on the applicant due to the earlier order setting aside the demand. The appeal was allowed, and the Revenue's application was allowed accordingly.