COMMISSIONER OF C. EX., AHMEDABAD Vs. NANDESHWARI PACKAGING

JUDGEMENT

(1.) THE appeal is being heard in terms of directions of Honble High Court of Gujarat, directing the Tribunal to decide the issue of penalty in the light of Honble Supreme Court judgment in case of UOI v. Dharmendra Textile Processors as reported in 2008 (231) E.L.T. 3 (S.C.) = 2008 (89) RLT 103 (S.C. -L.B.).

(2.) I find that Tribunal vide Order No. A/125/WZB/AHD/08, dt. 17 -1 -08 [2009 (235) E.L.T. 697 (T)], had rejected the appeal filed by the Revenue on the ground that the findings of Commissioner (Appeals) on the issue of time bar, cannot be disturbed. The order was passed by following the Honble Supreme Court decision in case of CCE, Chandigarh v. Bhalla Enterprises - 2004 (173) E.L.T. 223 (S.C.), laying down that limitation for issue of show cause notice starts running from the date of search and seizure of the documents or from the date of completion of investigation. The said finding of the Tribunal do not stand disturbed by Honble High Court and the matter stand remanded only for deciding the penalty issue. Inasmuch as the Commissioner (Appeals) has held that the demand is barred by limitation, provisions of Section 11AC do not gets invoked, as the entire show cause notice has to be held as barred by limitation. Law declared by Honble Supreme Court is to the effect that where Section 11AC is invoked, the authorities have no discretion to levy less penalty than the duty demand. However, in case where show cause notice is held to be barred by limitation, the Section 11AC would not get invoked. As such, I find no infirmity in the view adopted by Commissioner (Appeals) as the issue of limitation does not challenged by Revenue.

(3.) IN view of the above, I find no merits in Revenues appeal and reject the same.