Commissioner of C. Ex. and Cus. vs Atul Ltd.

K.A. Puj, J.—This Court has passed an order in Tax Appeal No. 334/2009 on 28-1-2010, whereby the appeal preferred by the Revenue, was dismissed only on the ground of smallness of the amount being Rs. 25,000/-. While disposing the said appeal, this Court has observed that the Joint Commissioner, Central Excise and Customs, Daman vide his order dated 22-10-2007, inter alia, imposed penalty of Rs. 6,33,590/- u/s 11AC of the Central Excise Act, 1944. This order was challenged in appeal before the Commissioner (Appeals), who vide its order dated 29-4-2008, has reduced penalty to Rs. 25,000/-. This order of the Commissioner was challenged by the respondent-Assessee before the Customs Excise and Service Tax Appellate Tribunal. The Court, further, observed that the order of the Commissioner was not challenged by the Revenue before the Tribunal. The Tribunal has deleted the penalty of Rs. 25,000/- against which the present Tax Appeal was filed.

By way of the present Miscellaneous Application, Mr. Gaurang H. Bhatt, learned Standing Counsel, has pointed out that the department has, in fact, filed Tax Appeal before the Tribunal challenging the order passed by the Commissioner (Appeals) and the said Tax Appeal is still pending. He has, further, submitted that order passed by this Court is required to be recalled.

We consider the submissions made by Mr. Bhatt and also averments made in the application. We are, however, of the view that the Court was concerned only with Tax Appeal No. 334/2009 wherein the amount involved is to the extent of Rs. 25,000/- and on the ground of smallness of the amount, the Court has not entertained the said appeal. The Revenue has now brought to the notice of the Court that the Revenue has also filed appeal, which is pending before the Tribunal. It is open for the Revenue to agitate the issue before the Tribunal in the pending appeal, irrespective of the dismissal of the Tax Appeal No. 334/2009 and this order would not come in the way of the Revenue before the Tribunal, while agitating their challenge against the order passed by the Commissioner (Appeals).

In view of the above matter, the order passed by this Court on 28-1-2010 is neither required to be recalled nor it is required to be modified, except to the extent of above clarification.

With this direction and observation, this application is, accordingly, disposed of.