Commissioner of Central Excise vs Raj Finoxides Private Ltd., a company incorporated under the Companies Act, 1956

The Court : This reference application has been admitted on the following grounds:

Whether the Tribunal has jurisdiction the penalty u/s 11AC of the Central Excise Act, 1944 beyond the scope of the proviso to the said section namely if paid beyond the period stipulated therein?

Mr. Mukherjee appearing in support of the application tried to contend that the Tribunal had no jurisdiction to reduce the penalty u/s 11AC of the Central Excise Act. on the contrary, it has been it has by Mr. Dutt before us that such question has already been decided by several Hon''ble High Courts and the Hon''ble Supreme Court of India find the following decisions are cited:

2003 (161) ELT 285

2000(38) RLT 619(SC) (V.M. Salgaocar & Bros. P. Ltd. v. Commissioner of (Income Tax)

Commissioner of Central Excise-I Vs. Gaurav Mercantiles Ltd.,

2005(67) RLT 157 (Mad.) (CCE, Madras v. Jkon Engineering (P) Ltd.)

Commissioner of C. Ex. Vs. Shree Krishna Pipe Industries,

In 2003 (161) ELT 285 the Tribunal came to the conclusion that when a party has already deposited the duty to the department, prior to issue of show cause notice, no penalty should be imposed on the party. It was accordingly held that, there is no justification on the part of the department to impose penalty u/s 11AC as well as Under Rule 173Q of the Central Excise Rules, 1944 and Consequently, no interest also is payable. An appeal was preferred from the said order before the Hon''ble Supreme Court and the Hon''ble Supreme Court was pleased to condone the delay and dismissed the appeal. The said of order was passed in Civil Appeal No. B. 5977 of 2003 filed by the Commissioner of Central Excise, Visakhapatnam against the order ok CEGAT dated 13th November, 2002.

In 2000(38) RLT 619(SC) (Supra) the Hon''ble Supreme Court held that "different considerations apply when a SLP under Article 136 of the Constitution is simply dismissed by saying ''dismissed'' and an appeal provided under Article 133 is dismissed also with the word ''the appeal provide under with the words the appeal is dismissed''. In the former case it has been'' laid by this Court that when SLP is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here, the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or the Tribunal from which the appeal is provided under Clause (3) of Article 133. This doctrine of merger does not apply in the case of dismissal of SLP under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court."

In Commissioner of Central Excise-I Vs. Gaurav Mercantiles Ltd., the Division Bench of Hon''ble Bombay High Court on the basis of the decision reported in 2003 (161) ELT 285 came to the conclusion that the view taken by the Tribunal was subject matter of appeal before the Apex Court and the appeal has been dismissed by the Apex Court and accordingly held that it can" safely be concluded that the view taken by the Tribunal was accepted by the Apex Court.

In 2005 (67) RLT 157 Mad.) (Supra) the Division Bench of Madras High Court held that the facts of the case since covered by a decision of CEGAT reported in 2003 (161) ELT 285 and the decision of the Tribunal has already been upheld by the Hon''ble Supreme Court of India in Civil Appeal No. D. 5977 of 2003 dated 17th May, 2003 and the appeal was dismissed by the Hon''ble Division Bench of Madras High Court.

Commissioner of C. Ex. Vs. Shree Krishna Pipe Industries, the Division Bench of Karnataka High Court came to the conclusion that the order So passed by the Tribunal is a reasoned order though brief and no question a law arises in regard to the said order and the High Court accordingly dismissed the said petition.

In our opinion this matter is fully covered by the decisions discussed above and we do not differ with the aforesaid decisions and accordingly come to the conclusion that this reference application which has been admitted by the Court cannot succeed and the same is therefore dismissed.

Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.