JAGDISH OIL MILLS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appeal is against the revisional order confirming the penalties on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994.

(2.) THE facts of the case are that the appellant is engaged in the manufacture of Refined Cotton Oil inputs i.e., raw material Cotton Waste Oil is used and after procession on inputs finished goods, refined cotton oil is coming into existence which is sold in market. The inputs were received from various customers by the appellant for refining and after receipt of the said inputs the same are to be processed are accounted in the Daily Stock Account Register and cleared from the factory on payment of duty as applicable rates. During the course of investigation, the preventive officers concluding the activity of refining as job work and asked the appellant to pay service tax under the category of Business Auxiliary Services. The appellant to get rid of litigation deposited the Service Tax as demanded by the department and paid the penalty of Rs. 10,000 also. The assessment was completed but the Commissioner under the powers under Section 84 of the Finance Act, 1994 revised the assessment and hold that the appellant has wilfully suppressed the fact from the department regarding the activities of business auxiliary service with intent to evade service tax due thereon and confirmed the various penalties under Sections 76, 77 and 78 of the Finance Act. The appellant pleaded before the revisional authority that their activity amounts to manufacture and they have paid excess duty on the refined oil and as such they were not required to service tax, accordingly, they are not liable to pay any penalty. But the adjudicating authority did not consider the same and imposed the various penalties on the appellants. Aggrieved from the same appellant is before me.

(3.) ON the other hand, the Learned DR submitted that the order of levy of service tax has become final and same has not been challenged. Hence, the appellant cannot agitate the merits in the penalty proceedings. He placed reliance on Collector of Central Excise v. Flock (India) (P.) Ltd. : 2000 (120) ELT 285 (SC) wherein it was held that when adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal it is not open to the party to the question of correctness of order of the adjudicating authority subsequently by filing a claim for refund.