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CX - S.35A(3) of CEA, 1944 - Commissioner(A) could not have enhanced penalty without issuance of any show-cause notice - Matter remanded: CESTAT

By TIOL News Service

MUMBAI, JAN 07, 2015: THIS is an appeal directed against an order-in-appeal passed by the Commissioner of Central Excise & Customs (Appeals), Pune-III on 29.10.2009 and concerns penalty.

Incidentally, in the earlier round of proceedings, the Tribunal had remanded the matter by an order dated 11.05.2009 and in remand proceedings, the first appellate authority has enhanced the penalty imposed on the appellant.

Interestingly, while passing that order of remand reported by us as - 2009-TIOL-904-CESTAT-MUM, the Bench had quipped - To any prudent man, ambiguity is writ large on above order of the learned Commissioner(Appeals). On the one hand, the appellate authority holds that the assessee is liable to be penalized under section 11AC. On the other hand, it holds that the assessee is not liable to pay penalty.

Be that as it may, before the CESTAT, in the current proceedings, the appellant submits that as per the provisions of section 35A of the CEA, 1944, the first appellate authority has to issue a show cause notice for enhancement of the penalty.

The Bench observed –

"4.…we find that the adjudicating authority has imposed penalty on the appellant under rule 25 of the Central Excise Rules, 2002. The first appellate authority has enhanced the penalty without issuing any show-cause notice to the appellant. We find that the first proviso to the provisions of section 35A(3) mandates for issuance of a show cause notice. In the absence of any such show cause notice, we are of the view that the impugned order is liable to be set aside. At the same time, since the appeal filed by the appellant against the order of the adjudicating authority needs to be decided, we remand the matter back to the first appellate authority to reconsider the issue afresh after following the principles of natural justice."

The order-in-appealwas set aside and the appeal was allowed by way of remand.

In passing : It's time that the NACEN schedules some training programmes for the senior officers too as part of its New Year resolution!

Six years and we are back to square 1.

(See 2015-TIOL-55-CESTAT-MUM)


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