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PJ/ Case Laws/2012-13/1269

RoM of Revenue is deemed to be rejected when SCN does not say anything about willful suppression.
CASE:COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III Vs M/s GLAXO SMITH KLINE PHARMACEUTICALS LTD
 
CITATION: 2012-TIOL-1279-CESTAT-MUM
 
BRIEF FACTS:On the basis of the finding that, the facts and allegations required for invoking the penalty under Rule 25 should be appropriately described, the learned Judicial Member vacated the penalty and allowed the appeal of the appellant M/s Glaxo Smithkline Pharmaceuticals Ltd. It is against this order; the Revenue has filed a ROM application. In the application, the Revenue states that all the four ingredients ruled by Hon'ble CESTAT, as requisite/necessary for imposition of penalty under Rule 25 ibid are there in the show-cause notice and, therefore, the observation of the CESTAT is in direct conflict with the facts of the show-cause notice which escaped well deserved attention of the CESTAT.
 
APPELLANT’S CONTENTION:The Revenue reiterates the ground urged in the ROM application.
 
RESPONDENT’S CONTENTION:The respondent submits that on reading the show-cause notice, it is very much clear that, except for stating that the assessee has suppressed the fact to evade payment of duty, nothing has come out to indicate how the suppression has been made by the assessee.
 
REASONING OF JUDGEMENT: After reading the show-cause notice it is found that how the assessee suppressed the fact is not coming in the show-cause notice. In the absence of clear statement with regard to how suppression has been made by the assessee, it is not possible to accept the contention of the Revenue that there is an error to be rectified in the appeal.
 
DECISION:The application is dismissed.
 
Comment: It is not sufficient for the department to merely state that there is suppression of facts made by the assessee and so penalty under Rule 25 is imposable. There should be proper description by the department in the show cause notice along with proper evidences showing the manner in which assessee has suppressed facts.
 
 
 

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