1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CENTRAL CENTRAL CENTRAL EXCISE APPLICATION NO.45 OF 2001 EXCISE APPLICATION NO.45 OF 2001 EXCISE APPLICATION NO.45 OF 2001 The The The Commissioner Commissioner Commissioner of C.Excise .. Applicant of C.Excise .. Applicant of C.Excise .. Applicant vs vs vs M/s M/s M/s Whirpool India Ltd Whirpool India Ltd Whirpool India Ltd ...... Respondent Respondent Respondent Ms.S.V.Bharucha Ms.S.V.Bharucha Ms.S.V.Bharucha i/b i/b i/b Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi for for for Applicant Applicant Applicant Mr.Prakash Mr.Prakash Mr.Prakash Shah Shah Shah i.b PDS Legal for Respondent i.b PDS Legal for Respondent i.b PDS Legal for Respondent CORAM CORAM CORAM : S.RADHAKRISHNAN & : S.RADHAKRISHNAN & : S.RADHAKRISHNAN & V.C.DAGA, V.C.DAGA, V.C.DAGA, JJ JJ JJ DATE DATE DATE : : : 7th June, 2007 7th June, 2007 7th June, 2007 P.C. P.C. P.C. 1.1.1. Heard learned counsel for the appellant and the Heard learned counsel for the appellant and the Heard learned counsel for the appellant and the respondents. respondents. respondents. 2.2.2. Perused the order of the Commissioner, Central Perused the order of the Commissioner, Central Perused the order of the Commissioner, Central Excise Excise Excise dated 30th June, 2000 wherein the dated 30th June, 2000 wherein the dated 30th June, 2000 wherein the Commissioner Commissioner Commissioner had imposed a penalty of had imposed a penalty of had imposed a penalty of Rs.32,39,170/- Rs.32,39,170/- Rs.32,39,170/- against Mutual Industries under against Mutual Industries under against Mutual Industries under section section section 11A (2) of the Central Excise Act, 1944 and 11A (2) of the Central Excise Act, 1944 and 11A (2) of the Central Excise Act, 1944 and ititit may may may be noted here that M/s Mutual Industries was be noted here that M/s Mutual Industries was be noted here that M/s Mutual Industries was the the the manufacturer of goods who was obliged to pay manufacturer of goods who was obliged to pay manufacturer of goods who was obliged to pay duty. duty. duty. The said order of the Commissioner also The said order of the Commissioner also The said order of the Commissioner also imposed imposed imposed a penalty of Rs.20,00,000/- on the a penalty of Rs.20,00,000/- on the a penalty of Rs.20,00,000/- on the petitioner petitioner petitioner who who who was the purchaser under Rule 209A of was the purchaser under Rule 209A of was the purchaser under Rule 209A of the the the Central Excise Rules, 1944. The aforesaid Central Excise Rules, 1944. The aforesaid Central Excise Rules, 1944. The aforesaid imposition imposition imposition of penalty on both the manufacturer M/s of penalty on both the manufacturer M/s of penalty on both the manufacturer M/s 2 Mutual Mutual Mutual Industries as well as the Industries as well as the Industries as well as the purchaser-petitioner purchaser-petitioner purchaser-petitioner herein were set aside by herein were set aside by herein were set aside by CESTAT CESTAT CESTAT by its order dated 29th November, 2000 with by its order dated 29th November, 2000 with by its order dated 29th November, 2000 with common common common reasons. reasons. reasons. 3.3.3. Learned counsel for the respondents could not Learned counsel for the respondents could not Learned counsel for the respondents could not dispute dispute dispute that so far as the case of the purchaser that so far as the case of the purchaser that so far as the case of the purchaser and and and manufacturer M/s Mutual Industries is manufacturer M/s Mutual Industries is manufacturer M/s Mutual Industries is concerned, concerned, concerned, the department has not filed any the department has not filed any the department has not filed any application application application or challenged the same whereas with or challenged the same whereas with or challenged the same whereas with regard regard regard to the petitioner-purchaser the present to the petitioner-purchaser the present to the petitioner-purchaser the present application application application is being filed. There is no dispute is being filed. There is no dispute is being filed. There is no dispute that that that the Department has accepted the order of the Department has accepted the order of the Department has accepted the order of CESTAT CESTAT CESTAT with regard to the Manufacturer. with regard to the Manufacturer. with regard to the Manufacturer. 4.4.4. If that be so, the department is precluded from If that be so, the department is precluded from If that be so, the department is precluded from challenging challenging challenging with regard to the Purchaser, who is with regard to the Purchaser, who is with regard to the Purchaser, who is the the the Petitioner herein. Under the aforesaid facts Petitioner herein. Under the aforesaid facts Petitioner herein. Under the aforesaid facts and and and circumstances, we do not find any substantial circumstances, we do not find any substantial circumstances, we do not find any substantial question question question of law. Application stands rejected. of law. Application stands rejected. of law. Application stands rejected. (V.C.Daga, (V.C.Daga, (V.C.Daga, J) J) J) (Dr.S.Radhakrishnan, (Dr.S.Radhakrishnan, (Dr.S.Radhakrishnan, J) J) J) 3