IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 C.E.Appeal.No. 22 of 2007() --------------------------- AGAINST ORDER DATED 22/02/2005, NO. 335, 336/2005 of CUSTOMS,EXCISE & SERVICE TAX APP.TBNL., BANGALORE .................... APPELLANT / APPELLANT / RESPONDENT ----------------------------- M/S KUMARAN IMPLEMENTS, KINAVALLUR, PARLI, PALAKKAD, REPRESENTED BY ITS PROPRIETRESS N.PADMINI. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): / RESPONDENTS / PETITIONER --------------- COMMISSIONER OF CENTRAL EXCISE, CALICUT. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX FOR R1 THIS CENTRAL EXICISE APPEAL HAVING COME UP FOR ADMISSION ON 06/04/2011, ALONG WITH CEA NO. 24 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- CEA Nos. 22 & 24 of 2007 --------------------------------- Dated, this the 6th day of April, 2011 J U D G M E N T Ramachandran Nair, J. Order under challenge is one issued by the Customs, Excise & Service Tax Appellate Tribunal confirming demand of duty on the appellants for the reason that separation of the industry between husband and wife is only to get separate SSI exemption. The clear finding of the Tribunal is that, in effect the industry though with two names is run as a single unit with common funds and management. There is no scope for interference with the findings of fact by the Tribunal based on the evidence and record produced before them. This Court can entertain appeal against Tribunal's orders only on substantial question of law. We do not find any substantial question of law arising from the orders of the Tribunal wherein the findings are only on facts. 2. Learned counsel for the appellants submitted that the Tribunal under the impugned orders though not discussed levy of CEA Nos.22 & 24/2007 -2- penalty challenged by them has virtually upheld it in principle. Learned standing counsel for the respondent produced a copy of the revised adjudication order wherein penalty is seen levied under Section 11AC of the Central Excise Act. A decision of the Supreme Court in Union of India v. Dharmendra Textiles Ltd., reported in 2008(13) SCC 369, is also cited before us for a position that penalty under Section 11AC is mandatory and adjudicating authority has no discretion above it. The appellants' counsel pointed out that the provisions were introduced or recast only on 28/09/1996 and the offence if any relates prior to the said amendment, and therefore, according to him, Section 11AC has no application. 3. We feel this matter requires to be reconsidered by the adjudicating authority. Therefore, there will be a direction to the adjudicating authority to consider the case of the appellants based on rectification application to be filed by the appellants along with a copy of this judgment to rectify the revised order for recalling the penalty. If the Officer finds that the penalty provisions are not applicable for the relevant period or that he has any discretion at that time, he will reconsider propriety of the levy and the extent of CEA Nos.22 & 24/2007 -3- the penalty levied. These CE Appeals are therefore disposed of confirming the orders of the Tribunal to the extent indicated above and by remanding the penalty matter to the adjudicating authority. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg