LAWS(SC)-2019-2-470

KUSUM LAMBA Vs. COMMISSIONER CENTRAL EXCISE

Decided On February 25, 2019
Kusum Lamba Appellant
V/S
COMMISSIONER CENTRAL EXCISE Respondents

JUDGEMENT

(1.) Leave granted.

(2.) Heard learned counsel for the parties, since a short question, that too pure question of law is involved in the instant case.

(3.) The appellant is engaged in the casting of machines and unmachined castings of the Hubs and Drums used in motor vehicles falling under Chapter 87 of the Schedule to the Central Excise Tariff Act, 1985. The respondent visited the factory of the appellant on 16.01.1997 and found that the appellant was manufacturing machined and rough casting of Brake Drum of motor vehicles of various sizes. The respondent also recovered stencils of various marks in the factory of the appellant and marking of such type was also found on manufacturing items. A show cause notice was given on 10.02.1999 by the respondent to the appellant whereby it was alleged that the appellant was manufacturing goods of different brands and availing the benefit of SSI exemption which otherwise would not have been admissible to them and asked to show cause as to why excise duty along with penalty under Section 11AC of the Central Excise Act, 1944 ('the Act') be recovered from the appellant. The Joint Commissioner Customs and Central Excise, Indore after taking into consideration the reply of the appellant directed recovery of tax Rs.4,19,870/- and 100% mandatory penalty under Section 11AC of the Act. The appellant preferred an appeal against the assessment order dated 31.03.2000 before the Commissioner (Appeals) who after considering the case of the appellant allowed the appeal substantially. It is held that excise duty on machined goods cleared under the brand name had been rightly confirmed by the adjudicating authority. However, no duty was chargeable on clearance of goods cleared under brand names "œGwalior " and Tusker ". It is further held that mandatory penalty under Section 11AC was reduced equivalent to duty to be levied on goods cleared by the appellant for the period commencing from 28.09.1996. The appellant challenged the order dated 29.08.2003 passed by the Commissioner (Appeals) by preferring an appeal before the Customs Excise and Service Tax Appellate Tribunal(CESTAT) insofar as mandatory penalty is concerned. The respondent also filed an appeal before the CESTAT against the order dated 29.08.2003 passed by the Commissioner (Appeals). The CESTAT vide its order dated 07.10.2004 allowed the respondent's appeal thereby quashing the order dated 29.08.2003 passed by the Commissioner (Appeals) restoring the order dated 31.03.2000 passed by the adjudicating authority. The appellant challenged the order passed by the CESTAT before the High Court. Vide impugned order the High Court dismissed the appeal of the appellant.