COMMISSIONER OF C. EX., BANGALORE Vs. BANGALORE AUTOMATS

JUDGEMENT

(1.) THIS is Revenues appeal arising from the Order -in -Appeal No. 57/2005, dated 28 -2 -2005 by which the Commissioner (Appeals) has noted that the demands are barred by time as the discrepancies were noticed in September, 2002 whereas show cause notice was issued in February, 2004 for demanding interest and penalty. He also noted that the Tribunal ruling rendered in the case of Ashok Leyland Ltd. v. Commissioner of Central Excise, Chennai [2003 (156) E.L.T. 995 (Tri. - Chennai)] had clearly held that the show cause notice cannot be issued merely for interest and penalty when duty has already been paid before issue of show cause notice. On both the points he found that the confirmation of demand is not justified and set aside the same.

(2.) THE learned JDR submits that the Commissioner (Appeals) ought not to have set aside the entire Order -in -Original as duty had been paid earlier and the same was required to be confirmed. He has ought to have only set aside the interest and penalty.

(3.) ON a careful consideration of the matter, I notice that the show cause notice was issued on 28 -2 -2004 for demand pertaining to September, 2002. The Commissioner (Appeals) has noted that the Department was either lost sight of this case or was itself not convinced as to whether interest and penalty to be imposed or not. He has also noted that the show cause notice was issued casually because it is now a settled law that show cause notice need not be issued for interest and penalty when duty has already been paid much prior to issue of show cause notice. In view of this finding, I find that the impugned order is correct and legal. It has to be observed that the Commissioner (Appeals) has set aside the show cause notice itself as incorrect and not sustainable. Furthermore the reliance on the cited judgment is also correct as the same is applicable to the facts of the case. Therefore there is no question of partly upholding the Order -in -Original. There is no merit in the appeal and the same is rejected.