COMMISSIONER OF C. EX., KOLKATA-I Vs. GYMKHANA

JUDGEMENT

(1.) APPEAL Nos. 9 -11/05 when called for hearing Mr. Joydeo Chandu Sinha only appeared for and on behalf of Respondent, General Security & Information Service in Appeal case No. STSM -10/2005 and ld. DR appeared for Revenue -Appellant and submitted that for all the three Respondents, stating that a common appeal order having been passed on 14 -10 -2004 in respect of penalty under different provisions of Finance Act, 1994 common disposal of all the three appeals may be made. According to him, the Appellate order setting aside the penalty and modifying impugned order was uncalled for when then was breach of law by the Respondents. However the Respondent appearing as aforesaid supported the first appellate order and submitted that Revenues appeal may be dismissed.

(2.) PERUSAL of the appellate order dated 14 -10 -2004 passed in Order -in - Appeal No. 126 -128/kol -I/2004 dated 14 -10 -2004 throws light that there was a mechanical and statistical disposal of appeal done by the ld. appellate authority when the services rendered by each and every Respondent was quite different which called for examination of each and every case separately on the touch stone of law. Governing facts and attendant circumstance of each case decides fate of that case. Penalty may be imposable under one section for several assessees for default. But while considering waiver of the penalty or reduction thereof, facts of each and every case calls for examination under the statutory provision of Section 80 of the Finance Act, 1994. Factual details should be brought to record to demonstrate nature of breach of law and whether there was any reasonable cause for waiver of penalty. Common order may only be passed in case of a single Appellant/Respondent for different periods when there is common cause. But when there are different appellants, passing of common order would not serve interest of justice because ordain of justice demands self -speaking and reasoned order in each case which is sine qua non. Reason for passing a speaking and reasoned order may be appreciated from the ruling of Honble High Court of Punjab and Haryana reported in [2006] 284 ITR 153 (P&H) in the case of Commissioner of Income Tax v. Palwal Co -operative Sugar Mills Ltd. which reads as under : -

(3.) IN view of the above reason it would be proper to remit back all the three appeals filed by Revenue in Appeal case Nos. 09 -11/05 as aforesaid for passing separate reasoned and self -speaking orders by the ld. Commissioner (Appeals) in each and every case examining facts and circumstances of each case and also examining reasonable cause u/s 80 of Finance Act, 1994, if any which calls for waiver or reduction of penalty. While passing the order it should be remembered that because penalty is leviable as prescribed by law that should not be mechanically levied following ratio laid down by the Honble Apex Court in the case of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. (J159) = AIR 1970 SC 253 and by the Honble Madras High Court in the case of Woodward Governors India (P) Ltd. v. C.I.T. reported in 253 AIR 745 (Mad.) as well as the Honble Supreme Courts decision in the case of State of Madhya Pradesh v. Bharat Heavy Electricals [1998 (99) E.L.T. 33 (S.C.)]. The ratio laid down by the Apex Court in following terms in the case of Madhya Pradesh v. Bharat Heavy Electricals so far as relevant is reproduced below : -