CEA No.169 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.169 of 2010 Date of decision: 18.5.2011 M/s Ayushi Steels Co. Pvt. Limited ... Appellant Versus Commissioner of central Excise and another ...Respondents CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR.JUSTICE RAJESH BINDAL Present: Mr. Vikrant Kackria, Advocate for the appellant. Adarsh Kumar Goel, ACJ. The assessee has preferred this appeal under Section 35G of the Central Excise Act, 1944 (‘the Act’) against the Final Order No.609-630/2009-Ex(DB) dated 4.9.2009 in Excise Appeal No.1407 of 2009 – Ex (BR), claiming following substantial questions of law:- “i) Whether the order passed by the Appellate Tribunal holding that the appellant is liable to penalty under rule 25 is legal, when the provisions of the Rule 173Q(bbb) of the erstwhile Central Excise Rules 1944 (under which the act of the appellant was an offence) which were rescinded in 2001 are not incorporated in Rule 25 of the Central Excise Rules 2001/2002? ii) Whether the order passed by Appellate Tribunal is 1 CEA No.169 of 2010 legally sustainable when the fact that there was no provision similar to Rule 173Q (bbb) of Central Excise Rules, 1944 (under which the act of the appellant was an offence) in the Central Excise Rules 2002 was admitted in the order, yet penalty under Rule 25 of the Central Excise Rules 2001/2002, was confirmed? iii) Whether the order of the appellate Tribunal holding that the penalty under Rule 25 is imposable in the absence of goods, is legally sustainable in view of the fact that the quantum of penalty imposed depends upon the value of the goods? iv) Whether penalty can be imposed under Rule 25 of the Central Excise Rules 2002 in absence of any proposal for the confiscation of the goods? v) Whether the order passed by the Appellate Tribunal without following precedent decision on the same issue is legal having been passed without adhering to the requirement of judicial propriety of following the decision given by a larger bench of the Tribunal on identical issue? vi) Whether it can be held that the appellants have dealt with the goods in terms of Rule 25 when the case of the department in the show cause notice is that they have neither received nor supplied any goods? vii) Whether the order passed by the appellate Tribunal dismissing the appeal of the appellant and upholding the penalty equal to the Cenvat Credit passed on to the buyers is just, when it is on record that the appellant received merely a commission of 3% and it is settled law that 2 CEA No.169 of 2010 penalty imposed ought to be commensurate with the offence?” Learned counsel for the appellant states that same order of the Tribunal was subject matter of consideration before this Court in Central Excise Appeal Nos.71 and 105 of 2010 decided on 17.3.2011 (Vee Kay Enterprises v. Commissioner of Central Excise) reported as 2011 (266) ELT 436 and therein the matter was remanded to the Tribunal, after holding that when the quantum of penalty was in the discretion of the Tribunal, the said quantum had to be determined taking into account all the facts and circumstances. In view of above, this appeal is disposed of in same terms and the matter is remanded to the Tribunal. The appellant may appear before the Tribunal for further proceedings on July 4, 2011. It is made clear that if the respondents are aggrieved by this order, they will be at liberty to move this Court. (Adarsh Kumar Goel) Acting Chief Justice May 18, 2011 (Rajesh Bindal) ‘gs’ Judge 3 CEA No.169 of 2010 4