IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.A. No.206 of 2010 (O&M) Date of decision: 9.2.2011 M/s K.K. Spinners Private Ltd. -----Appellant. Vs. Commissioner of Central Excise. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Jagmohan Bansal, Advocate for the appellant. Mr. H.P.S. Ghuman, Standing Counsel for the respondent --- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 (for short, “the Act”) against the order of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 27.4.2010, Annexure A-7, raising following substantial questions of law:- “a. WHETHER penalty under Rule 173Q/25 of the Rules can be imposed when penalty is imposed under Section 11AC of the Act? b. WHETHER the Tribunal has committed an error while not allowing the Application for Rectification of mistake? C.E.A. No.206 of 2010 c. WHETHER the impugned order passed by Ld. Tribunal is perverse and contrary to law?” 2. After issuing notice under Section 11AC of the Act, alleging wrongful availment of benefit of exemption, Order-in- original dated 31.5.2004 was passed by the Adjudicating Authority confirming the demand of duty and imposing penalty under Section 11AC equal to the duty, confirming demand of interest @ 24% under Section 11AB and further imposing penalty of `50,000/- under Rule 173Q of the Central Excise Rules, 1944 read with Rule 25 of the Central Excise rules, 2001. Appeal of the appellant was dismissed by the Commissioner (Appeals) as well as by the Tribunal. The appellant filed application for rectification of mistake (ROM) confined to the question whether in addition to penalty under Section 11AC and interest under Section 11AB of the Act, further penalty under Rule 173Q or Rule 25, for the same violation, was justified. The Tribunal dismissed the application on the ground that the appellant had not raised the said point at the time of hearing of the appeal. 3. We have heard learned counsel for the parties. 4. Learned counsel for the appellant submits that the point was specifically raised in the grounds of appeal and mistake was legal and apparent on the face of the record. A perusal of para 6 of the grounds of appeal shows that the point had been taken. In any case, the point raised was purely legal and could 2 C.E.A. No.206 of 2010 be considered in the interest of justice. The appellant having been required to pay duty, penalty of equal amount, interest @ 24%, question whether any further penalty was called for requires consideration. 5. Accordingly, the questions raised are answered in favour of the assessee as indicated above. The appeal is allowed. The matter is remanded to the Tribunal for a fresh decision on the application for rectification of mistake in accordance with law. Parties may appear before the Tribunal for further proceedings on April 18, 2011. (ADARSH KUMAR GOEL) JUDGE February 09, 2011 (AJAY KUMAR MITTAL) ashwani JUDGE 3