EXCEL ENTERPRISES Vs. CCE

JUDGEMENT

(1.) THE COD application is in supplementary appeal filed by the Proprietor of the company in his personal name as there is personal penalty against his name as also in the name the proprietary concern. Both the appeals arise from Order -in -Appeal, therefore the delay in filing the supplementary appeal is condoned in terms of the Tribunal's practice.

(2.) BOTH the appeals arise from common Order -in -Appeal Nos. 256 and 257/99 dated 3.11.1999 by which the Commissioner (Appeals), Chennai has dismissed the appeals under proviso to Section 35F of the Act for non deposit of duty of Rs. 8,54,942/ -, like amount of penalty under Section 11AC, Penalty of Rs. 5 lakhs under Section 173Q on the name of the Enterprise and Rs. 1 lakh under 209A on the proprietory. The Commissioner has dismissed the appeals on the pretext that no personal hearing is required to be extended in terms of the Apex Court Judgment rendered in the case of UOI and Ors. v. Jesus Sales Corporation Ltd. as . The Commissioner (Appeals) had directed the appellants to pre -deposit the entire amount within 15 days and as there was no pre -deposit done, he dismissed their appeal in the impugned order.

(3.) LD . Consultant submits at the outset that the dismissal of the appeal without granting hearing is violative of principles of natural justice. He submits that Tribunal had made known to the Commissioner (Appeals) by several orders that the Judgment of Jesus Sales Corporation was not applicable to the facts of the cases coming up under Section 35F of the Act as Commissioner was mandatorily required to give hearing in terms of Section 35A of the CE Act. He submits that despite the order of the Tribunal indicating to the Commissioner (Appeals) to grant hearing, he has continued to disobey the Tribunal's order and continued to pass similar orders despite several appeals remanded for de novo consideration on the ground. He submits that the appellant was only transferring the chemicals from big containers to small containers and was carrying on the activity of trade and there was no manufacture and did not satisfy the terms of manufacturer and 2F to produce separate goods having separate identity. He submits that even Chapter Note 6 of 34 and Note 5 of the TI wherein labelling or re -labelling of containers and repacking from bulk packs to retail packs amounting to manufacture did not satisfy in the present case as there was no pre -determined quantity in transferring the chemicals from bigger container to smaller container. He submits that Board has clarified this point by Circular No. 342/58/97 -CX dated 8.10.1997 wherein it has been clarified that expression "packing" is considered as package containing a pre packed commodity and quantity of products contained therein is also pre determined. The packaging is generally done without the purchaser being present. The packages also contain information such as name of the manufacturer, quantity, value and other details of the product. He submits that only if these conditions are satisfied, then the item would be covered as a separate goods in terms of Chapter note supra. It is his contention that in the present case, the appellants sells the goods to the customer in his presence and there is no pre determined packaging by giving all the information of the name of the manufacturer, quantity, value and other details of the product. He further submits that the direction to pre deposit penalties under Section 11AC and penalty under Section 173Q and 209A caused severe hardship and difficulty to the appellants. He submits that there cannot be two penalties one in the name of the enterprise and the other in the name of the proprietor as both are same. Therefore, the order imposing penalty under two different heads is totally unsustainable. He seeks for total waiver of the amounts and for remand of the case to Commissioner for de novo consideration in the light of the Board's circular relied by them. 3. Ld. DR opposes the prayer and submits that the order is sustainable and correct order. He submits that there is pre determined packing and it satisfies the Chapter Notes and also the clarification given by the Board's circular. He submits that all these aspects were considered by the Commissioner (Appeals) in the Interim order also. Therefore, non deposit within 15 days and consequent dismissal of the appeal is justified.