Per Shri P.C. Jain :

The present Appeal filed by the Revenue is against the impugned order setting aside the penalty of Rs. 100/- imposed on the respondents by the concerned Assistant Collector of Central Excise for non-submission of R.T.12 returns for the month of July 1989. The impugned order while giving a direction as above for setting aside the penalty of Rs. 100/- has relied upon its earlier order-in-Appeal No. 130/Cal.I/90 dated 24.7.90 wherein it was held that the impugned product manufactured by the respondents herein was classifiable under Sub-heading 3003.20 carrying a nil rate of duty. In its Cross Objection, the respondent has stated that they are manufacturing of the goods with effect from October 1987 which was classifiable under Sub-heading 3003.00 as P or P medicament with the rate of 15% ad-valorem. When they detected that this could not have classified under the above sub-heading, they wrote to the Assistant Collector and filed the revised classification list effective from 1.10.89 stating that as their product is one of 'pharmacopeia product' it enjoyed exemption from control. The said classification is still not approved by the Assistant Collector. Meanwhile, the appellants did not submit the R.T.12 returns for the manufacture of the goods on July 1989 which has led to imposition of fine of Rs. 100/-.

2. Ld. JDR, Shri S.N. Ghosh has submitted that the filing of revised classification list on nil rate of duty and stopping of R.T.12 returns on their own by the respondents was not correct and, therefore, the penalty was rightly imposed by the Assistant Collector concerned. From that view, the lower appellate authority should have confirmed the imposition of penalty of Rs. 100/- rather than setting it aside. He also submitted that the Collector has filed an Appeal against the Collector (Appeals)' order-in-Appeal No. 130/Cal.I/90 dated 24.7.90 and, therefore, the question whether the impugned product manufactured by the respondent carries nil rate of duty or not is sub-judice; the Appeal number given by the ld. JDR, as received from the concerned Assistant Collector, is E-3912/90C.

3. We have carefully considered the pleas advanced by the ld. JDR, Shri Ghosh and also considered the submissions made in the Cross Objection by the respondent who is not present today.

4. We observe from the impugned order that the Collector (Appeals) vide his earlier order dated 24.7.90 had held that the impugned product was liable to nil rate of duty under Sub-heading 3003.20. In that view, R.T. 12 returns was not required to be filed. This order-in-Appeal passed by the Collector (Appeals) still holds the field and there is no subsequent Stay order of the said order-in-Appeal. In that view of the matter, the Collector (Appeals) in the impugned order was justified in setting aside the impugned penalty of Rs. 100/- on the respondent herein. We, therefore, do not find much force in the Appeal of the Revenue. Consequently, it is rejected.