SWITCH GEARS AND CONTROL Vs. CCE

JUDGEMENT

(1.) Both sides have appealed before this forum against the same order. The appeal of the assessee is on the only ground that there should not have been levy of duty of Rs. 2,96,710/ - under Section 11A of Central Excise Act, 1944 read with Section 11AC of the said Act with equal amount of penalty. Learned Counsel submits that there was an allegation of clandestine removal. He submits that the entire pleadings is on page No. 11, 20, 21 of the appeal folder which carries page No. 1, 2 and 3 of the first appellate order. His principal grievance is that the material and pleadings have been ignored by the Authority below. Show cause notice is barred by limitation. No penalty is leviable under Section 11AC of Central Excise Act, 1944 and there was no evidence recorded on 1.8.99 suggesting that there was allegation of clandestine removal. If at all any private recorded is relied upon by the Revenue, the appellant cannot be debarred to lead defence by proper consideration of the pleadings. His further prayer is that the learned appellate authority denied Justice violating principles of natural justice and that can be seen from Page 19. Therefore, if natural justice is not followed, that cannot be cure at the appellate stage. Therefore, he requires the matter to be sent back to the learned adjudicating authority.

(2.) Revenue is in appeal Case No. 3232/06. Prayer of Revenue is to set aside the order in appeal and uphold the order in original. They are specific why they have challenged the order in appeal before this forum. Revenue is aggrieved by the waiver of penalty by the learned Commissioner (Appeals) which was imposed under Section 11 -D of the Central Excise Act, 1944 read with Rule 173 -Q of Central Excise Rules, 1944.

(3.) So far as the Revenue's appeal for restoring the appeal in original is considered, it may be stated that the law does not prescribe any penalty under Section 11D of Central Excise Act, 1944. Penalty is leviable under Section 11AC for evasion of Revenue. Section 11AC refers to cases of 11A of Central Excise Act, 1944. Rule 173Q has regard to Section 11AC of Central Excise Act, 1944. Noticing such a legislative mandate and also considering the citation by the learned Advocate in the case of MCO Hospital Aids Pvt. Ltd. v. CCE , it would be proper to hold that in absence of statutory provision, the appellant should have been considered for no penalty under Section 11D of Central Excise Act, 1944 read with Rule 173 -Q of Central Excise Rules 1944. Thus Revenue appeal is dismissed.