Sustianability of Revenue appeal when Assessee's appeal decided

PJ/Case Laws/2010-11/1070

Case: Commissioner of Central Excise, Jalandhar v/s Rail Fab

Citation: 2011 (263) E.L.T 683 (Tri. - Del.)

Issue:- When the appellant appeal is already decided in favour and penalty waived then the department appeal for enhancing penalty is not sustainable.

Brief Facts:- Against the same order-in-appeal, both Revenue and assessee had filed appeals before the Tribunal. The appeal of the assessee was allowed by the Tribunal. However, the Revenue’s appeal remained pending and is listed now for hearing.

Respondent’s Contention:- Respondent contended that when the bench could appreciate that there was no room left for initiating proceeding against appellant in view of reversal of Cenvat credit, the Bench not only allowed the appeal but also appreciated that penalty proceeding was unwarranted. In view of such a position, the appeal of Revenue has become in fructuous.

Reasoning of Judgment:- The Tribunal held that the fact of Revenue’s appeal was not brought to the notice of the Bench by both sides while deciding the Assessee’s appeal. It was held that it has been repeatedly noticed by the Tribunal that there is no mentioned neither by either side nor by Registry about pendency of appeal of either side while the appeal of the opposite side is taken up for hearing. It is high time for Registry to exercise proper control for listing of the appeal of both sides so that there shall not be conflict in the decision while appeal of one side is taken up, depriving the other side to pursue its remedy. It is needless to mention that the High Court have already repeatedly reminded that appeals cannot be disposed in piece-meal. It is also hereby informed to the Bar that the Bar should circulate to its members to bring to the notice of the Bench when they get notice, about appeal, if any, filed by Revenue relating to their appeals and vice versa. Learned CDR is also kept informed by this order that effective control should be exercised at the end of Revenue to bring to the light of the Bench about pendency of Revenue's appeal, if any, while assessee's appeal is taken up. Registry should not lose sight of clubbing of the appeals through effective control measure, so that there shall not be repetitive observation, like this, in future.

Decision:- Appeal rejected.

Comments:- The law of merger applies and department appeals are infructuous. When the matter is already decided by the tribunal on this very point of penalty and said that the penalty is not maintainable then the departmental appeal for enhancing penalty is not maintainable. It is merged in that decision.

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PJ/Case Laws/2010-11/1070

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