SENTHIL ENGINEERING CO. Vs. CCE

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, I am of the view that the appeal itself requires to be disposed of at this stage. Accordingly, after dispensing with predeposit, I proceed to deal with the appeal.

(2.) THIS is the second round of litigation before this Tribunal. In the first round, the appellants had challenged the appellate Commissioner's order imposing penalties on them under Rule 173Q of the Central Excise Rules, 1944 and Section 11AC of the Central Excise Act. That appeal was disposed of by this Bench as per Final Order (remand) No. 344/2005 dated 7.3.2005, wherein the grievance considered was that the lower appellate authority had not followed the mandate of the proviso to Section 35A(3) in imposing penalty under Rule 173Q [which penalty had not been imposed by the original authority, though proposed in the show -cause notice]. It appears from the remand order that no other grievance of the appellants was considered. Pursuant to the remand order, learned Commissioner (Appeals) passed a fresh order maintaining the penalty already imposed under Section 11AC while refraining from imposing any penalty under Rule 173Q. Hence the present round of litigation. As rightly pointed out by learned SDR, the remand order having been accepted by the appellants, they are estopped from agitating over the Section 11AC penalty. Learned Counsel's argument that, as the appellate Commissioner's first order was impliedly set aside by this Tribunal as per the remand order, the Section 11AC penalty did not survive, cannot be accepted inasmuch as it appears from the remand order that the grievance against this penalty was not pressed before the Bench when that order was passed. If the appellants maintain a view to the contra, their remedy was an application for rectification of mistake vis -a -vis the remand order.

(3.) IN the result, the present challenge against Section 11AC penalty is rejected and the impugned order is sustained.