2019 (4) TMI 325

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...., 1944 (hereinafter referred to as "the Act"), challenging the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity "the Tribunal"), dated 13.08.2010, in Final Order No.894/2010. 2.The above appeal was admitted, on 01.04.2011, on the following substantial questions of law:- (ii) Whether the extended period applied against the appellant Firm is valid when the Tribunal has not confirmed the demand under proviso to Section 11A(1) has not been substantiated, when more so the Hon'ble Supreme Court in Commissioner of Central Excise, Chandigarh Vs. Punjab Laminates Pvt. Ltd., 2006 (202) ELT 578 (S.C.) has held that Proviso to Section 11A(1) of Central Excise Act, 1944, is trite, provides f....

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....as to why an amount of Rs. 1,40,093/- towards non payment of duty on excisable goods, viz., Branded Chewing Tobacco (Super Deluxe/Deluxe) should not be demanded under proviso to Section 11A(1) of the Act for the period from 01.04.1999 to 2001-02; why penalty should not be imposed under Section 11AC of the Act; why penalty should not be imposed under Rules 52A, 173Q and 210 of the Act; and why interest at the appropriate rate should not be demanded under Section 11AB of the Act. 6.The sum and substance of the allegation against the assessee is with regard to the clandestine removal of chewing tobacco. The officers of DGCEI searched the business premises of the assessee on 08.06.2001 and records were recovered including registers which conta....

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....ate of Madhya Pradesh vs. Bharat Heavy Electricals 1998 (99) ELT 33 (SC), wherein it was observed that the statute may prescribe maximum penalty but, the Assessing Officer has to exercise discretion in the matter. Thus, by exercising discretion, the penalty imposed on the firm was reduced to Rs. 15,000/- and the penalty on the employees was reduced to Rs. 2,500/-. 8.Aggrieved by the same, the appellant and the employees filed appeals before the Tribunal. The Tribunal after taking note of the factual position, re-appreciated the same and found that the retraction was clearly an attempt to wriggle out of the statement given earlier and this only reveals loyalty of the employees towards their bosses. Therefore, the Tribunal confirmed the fin....

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....llate authority reducing the penalty from that of what was imposed by the Assessing Officer. In such circumstances, in an appeal filed by the assessee, they cannot challenge the penalty and the Tribunal lacked jurisdiction to restore the penalty imposed by the Assessing Officer. Therefore, to that extent, the order passed by the Tribunal calls for interference. 12.The appellant/firm is before us because, the Tribunal exceeded its jurisdiction and restored the penalty imposed on the employees. Admittedly, the assessee is not carrying on business and much of the business has now been either banned or regulated by various Acts enacted by the Central Government and State Government. 13.The learned counsel for the appellant would plead that th....