ELASTIC ENTERPRISES Vs. COMMISSIONER OF CENTRAL EXCISE, BANGALORE

JUDGEMENT

(1.) BOTH these appeals raise a common question of law and facts and hence they are taken up together for final hearing after allowing the stay applications granting waiver of pre -deposit of penalty of Rs. 25,000/ - each, confirmed by the Commissioner (Appeals) in the impugned order against both the appellants.

(2.) THIS is the second round of litigation. The Tribunal, by Final Order Nos. 1006 and 1007/2004, dated 1 -6 -2004 remanded the matter to the Commissioner (Appeals) for de novo consideration. The Tribunal gave a specific direction to consider the quantum of penalty on the appellants to be in par with the penalty of Rs. 1,000/ - imposed on M/s. Bangalore Mono Filaments in terms of OIA No. 140/2000 -C.E., dated 12 -5 -2000. The facts of all the three matters were common. The OIO pertaining to all the three parties were common wherein the penalty imposed on all the three parties mentioned above was Rs. 50,000/ -. The Commissioner (Appeals) had reduced the penalty in respect of M/s. Bangalore Mono Filaments to Rs. 1,000/ - while in respect of the appellants, he had reduced the penalty to Rs. 25,000/ - under the same facts of the case. The Tribunal felt that the imposition of penalty is disproportionate and the matter was not in terms of law and, therefore, the matter was remanded to Commissioner (Appeals) to readjudicate and fix the same penalty as fixed in M/s. Bangalore Mono Filaments. The Revenue had accepted the penalty imposed on M/s, Bangalore Mono Filaments by OIA No. 140/2000 -C.E., dated 12 -5 -2000 to an extent of Rs. 1,000/ -. In the present matter, the Commissioner had enhanced the penalty on M/s. Bangalore Mono Filaments to Rs. 25,000/ - when there was no appeal pending before the Commissioner (Appeals) in respect of M/s. Bangalore Mono Filaments. The Commissioner (Appeals), in the impugned order, has held that as the penalty in respect of M/s. Bangalore Mono Filaments is being enhanced to Rs. 25,000/ -, therefore, the penalty in respect of both the appellants is required to be enhanced to Rs. 25,000/ -. This logic is attacked by the learned Counsel on the ground that the Revenue had accepted the appeal of M/s. Bangalore Mono Filaments and no appeal had been filed before CESTAT. Therefore, the Tribunal remanded the appellants case to the Commissioner (Appeals) so that it can be brought to the notice of the Commissioner (Appeals) about the disparity adopted by the Commissioner (Appeals) in fixing the penalty in respect of these parties disproportionately without any rhyme or reason. The learned Counsel submits that the Commissioner has not understood the Tribunals order and without any appeal against M/s. Bangalore Mono Filamentss order, he had enhanced the penalty to M/s. Bangalore Mono Filaments and has held that the penalty of both the appellants is required to be enhanced. The Commissioner (Appeals)s order is, therefore, totally not as per law.

(3.) THE learned JDR reiterated the Commissioners findings.