Revenue vociferously arguing that assessee has not paid duty but lower authorities disagreeing - CESTAT too shuns Revenue Appeal
THE CESTAT vide Order dated 25/05/2011 passed the following directions:
"Accordingly, the impugned order with regard to penalty is set aside and the matter is remanded to the original adjudicating authority for quantification of the penalty under Section 11AC in accordance with law, as discussed above, after ascertaining as to whether the duty demand as upheld by Commissioner (Appeals) had been paid within the stipulated period as per the provisions of Section 11AC in which case the benefit of the same would have to be extended to the respondent."
Pursuant to this order, the adjudicating authority passed an order on 27/12/2011 wherein he determined the penalty under Section 11AC as Rs.1,04,181/-. However, he gave an option to the assessee to pay the reduced amount of 25% of the penalty amounting to Rs.26,045/- within 30 days from the receipt of the order. The original adjudicating authority had also given a finding that the assessee had made the payment of the duty within 30 days from the date of receipt of the order-in-appeal as mentioned in the Tribunal's order.
The department went in appeal before the Commissioner (Appeals) arguing that the order is bad in law as the appellant had not paid the duty within 30 days from the date of order-in-appeal.
So, the appellate authority caused a verification of this fact and came to the conclusion that there was no merit in the submission made by the department. As such, he dismissed the Revenue appeal as being devoid of merits.
Revenue has taken the matter further pursuant to the order passed by the learned Committee of Commissioners. Inasmuch as they have filed an appeal before the CESTAT and are again chanting the same - the appellant has not paid the duty.
The Bench observed -
"4. …, there is no evidence produced before me in support of the department's claim that the respondents herein had not paid the dues within the time-limit specified in the earlier orders. In the absence of any such evidence, it is very difficult to uphold the contentions made by the department.
The Revenue appeal was, therefore, dismissed as being bereft of any merits.
Interestingly, the respondent was not represented before the CESTAT.
And why is a simple task like whether the duty has been paid or not not ascertained all these years - as if the assessee lives on some other planet?