Central Excise Appeal No.49 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CEA No.49 of 2005 Date of Decision:-February 4,2010 Commissioner of Central Excise Commissionerate, Panchkula. ...Appellant Versus M/s Indian Sugar & General Engineering Corporation, Yamuna Nagar. ...Respondent CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Kamal Sehgal, Senior Standing Counsel for the appellant. Mr.Animesh Sharma, Advocate for Mr.Akshay Bhan, Advocate for the respondent. Ashutosh Mohunta, J. (Oral) The revenue has impugned the order dated 13.1.2004 (Annexure P3) passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, vide which, the order passed by the Commissioner (Appeals) was set aside. The respondent undertakes the job work and repair on free issue materials received from customers. They had done the job work for its sister concern Saraswati Sugar Mills. However, although, according to them, they were not liable to pay the duty for the job work, yet they have paid the duty to the tune of Rs.6,95,158/- on the value of the forgings (Rollar) supplied by Saraswati Sugar Mills. The revenue issued a show cause notice to the respondent, wherein the penalty and interest were demanded. The Adjudicating Authority confirmed the penalty and duty of the amount as incorporated in Central Excise Appeal No.49 of 2005 2 the show cause notice and the appeal filed by the concerned respondent was dismissed by the Commissioner (Appeals) vide order (Annexure P2). The respondent filed an appeal before the Appellate Tribunal, which has been allowed, vide Annexure P3, by holding that as the respondent was only doing the job work in the nature of repair work of shelling and grooving of discharges roller, therefore, they were not liable to pay any duty. However, as the duty imposed on the respondent was not challenged, therefore, only the penalty and interest portion were set aside. It is pertinent to mention here that the respondent has challenged only the imposition of penalty and interest in this appeal. This Court while admitting the appeal had framed the following questions of law:- (i) Whether in the facts and circumstances of the case, especially in an appeal against levy of interest and penalty only, the learned Tribunal was justified in recording findings on the merits of the case affecting liability of duty, which otherwise was not disputed by the assessee? (ii)Whether the deposit of amount of duty prior to issuance of Show Cause Notice will not call for any penal action? In the present case, the Appellate Tribunal has held that the job work done by the respondent was in the nature of repair work and hence the demand of penalty and interest is not sustainable. Reliance was placed on Ujagar Prints Etc.Etc. v. Union of India and others 1989 (39) E.L.T.493 (SC). We have heard the learned counsel for the parties at length. A perusal of the judgments in Ujagar Prints's case (supra) as well as Saraswati Industrial Syndicate Ltd. v. Union of India and others Central Excise Appeal No.49 of 2005 3 1985 (20) E.L.T. 251 (P&H) shows that no penalty or interest is leviable, when the concerned Firm doing only the job of repair work. Therefore, it is held that since the respondent-firm was undertaking only job work in the nature of repair work, no penalty or interest is leviable. Hence, the first question is answered against the revenue. As far as the second question is concerned, in view of the aforesaid findings on question No.1, the appellant is not entitled to impose any penalty or interest on the respondent and hence the second question is also answered against the revenue. Moreover, the respondent has already deposited the duty, even prior to the issuance of show cause notice. The finding of the Appellate Tribunal in this respect is upheld. In view of the above, the appeal filed by the revenue is dismissed with no order as to costs. (Ashutosh Mohunta) Judge (Mehinder Singh Sullar) Judge 4.2.2010 AS