CCE Vs. AUTOLITE INDIA LIMITED

JUDGEMENT

(1.) The Revenue has appealed against the order of the Commissioner (Appeals) made on 26.5.2005, holding that the respondent was eligible to pay duty in accordance with the Notification No. 2/95 -CE dated 4.1.1995. It was held that the respondent had already deposited duty before the issuance of the show cause notice, but claimed benefit of the Notification No. 2/95. As regards the recovery of interest, it was held that, since the duty was paid before the issuance of show cause notice, interest was not recoverable in view of the decision of the Tribunal in G.K. Steel (CBE) Ltd. v. CCE, Coimbatore reported in 2002 (53) RLT 1065. As regards the penalty, it was held that no penalty was imposable under Section 11AC of the Central Excise Act, 1944.

(2.) THE learned Counsel for the respondent raised a preliminary objection against the maintainability of the appeal by contending that the opinion formed by the Committee of Commissioners under Section 35B(2) that the order of the Appellate Commissioner was not legal or proper, was contrary to the earlier order of remand made by the Tribunal on 16.2.2005. It was submitted that by the said order of remand, the Commissioner (Appeals) was required to consider the applicability of the Larger Bench decision in Himalya International Ltd. v. CCE, Chandigarh -I , with regard to the benefits of the Notification No. 2/95. The Commissioner (Appeals) has decided the matter in favour of the assessee and there was no opinion formed on that aspect by the Committee and, therefore, the appeal was not maintainable due to improper authorization to file the appeal. Reliance was placed by the learned Counsel for the respondent on the decision of the Larger Bench of the Tribunal in CCE, Mumbai v. Bombay Switchgear reported in 2001 (134) ELT 659 (Tri. -LB), in which the Tribunal held that the formation of the opinion by the Collector that the order against which the appeal was to be filed is not legal or proper should be reflected from the order directing filing of the appeal or, at any rate from the note -sheet which contained the decision for filing the appeal.

(3.) IT is not disputed that the respondent EOU had short paid the duty amount on waste and scrap cleared, that there was shortage of finished goods (auto halogen bulbs) and that there was also shortage in the rejected goods. It was contended that, even if the duty was payable under the proviso to Section 3(1), the respondent was eligible to the benefit of the less rate of duty payable under the said Notification No. 2/95. It was submitted that Commissioner (Appeals) has rightly held that the appellant was eligible to the benefit of the Notification No. 2/95 dated 4.9.1995.