Commissioner, Central Excise & Service ... vs M/S Baba Texturiser
- CitationAppeal No.E/560/2007-DB
Ratio decidendi
The rule this decision rests on
Where the Commissioner (Appeals) has allowed an appeal on the strength of an earlier order in the same group of cases, and that earlier order was not challenged by the Revenue, the subsequent order rests on the same findings applied mutatis mutandis, since the facts, allegations, evidence and submissions are identical. A departmental appeal to the Tribunal is liable to be rejected where the Revenue has not challenged the earlier order on which the impugned order is founded, and where the CBEC circular of 17.08.2011, which bars the Revenue from filing appeals below Rs.5 lakhs before the Tribunal, applies to the appeal, the circular being treated as applicable retrospectively per the Karnataka High Court decision in Presscom Products.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal No.E/560/2007-DB [Arising out of OIA No.RS/122-123/SRT-II/2007, dt.30.03.2007, passed by Commissioner (Appeals), Central Excise & Service Tax, Surat-II]
Commissioner, Central Excise & Service Tax, Surat-II Appellant
Vs
M/s Baba Texturiser Respondent
Represented by:
For Appellant: Shri T.K. Sikdar, Authorised Representative For Respondent: None.
For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)
Date of Hearing/Decision:02.06.2015
Order No. A/10730 / 2015 dt.02.06.2015
Per: P.K. Das
None appears on behalf of the Respondents.
2. The Respondents were engaged in the manufacture of Texurised Yarn amongst others. A Show Cause Notice dt.18.05.2001, was issued to the Respondent and Shri Zunedbhai Yakubbhai Motiwala, the Authorised Signatory of the Respondent, proposing demand of duty of Rs.4,96,103.00 alongwith interest and penalties. The Adjudicating authority confirmed the demand of duty alongwith interest and imposed a penalty equal amount of duty on the Respondent and also imposed a penalty of Rs.50,000.00 on the Authorised Signatory. By the impugned order, the Commissioner (Appeals) set aside the Adjudication order. Hence, the Revenue filed this appeal against the Respondent.
3. After hearing the learned Authorised Representative for the Revenue and on perusal of the records, we find that there is an allegation of undervaluation of the goods on the basis of Panchnama. The Commissioner (Appeals) earlier passed OIA No.RS/196-201/SRT-II/06, dt.26.06.2006 in respect of Panchnama, dt.22/23.04.1997. It has been observed that the present Respondent was one of the parties to the proceedings initiated on the basis of Panchnama dt.22/23.04.1997. The relevant portion of the findings of the Commissioner (Appeals) are reproduced below:
8. After taking all facts into consideration in appeals filed by M/s Baba Fibres, M/s Baba Synthetics and M/s Dastagir Textiles, said to be part of Baba Group of Industries, I decided their appeals under OIA No.RS/196-201/SRT-II/06, dt.26.06.2006. The present Appellants were one of the party to the proceedings initiated on the basis of Panchnama dt.22/23.04.1997. Under the said order after detailed discussion and finding, their appeals were allowed on the ground that
i. The Department got complete details of sale transaction of entire disputed period but investigation was neither extended to any of the customers nor statement of any of the customers were recorded to the effect that they paid extra consideration to the Appellants.
ii. There is no corroborative evidence available on record about receipt of extra consideration. Further, total deviation has been made from panchnama and statement and therefore onus was on the Department to prove the alleged evasion with corroborative evidences.
9. Since all the facts, basis of allegation, evidences and submissions are identical to the appeals referred above, the same finding is applicable mutatis mutandis in the case of present appellants also. The earlier appeals of the group units were allowed. So, no other view can be taken by me in these appeals. I, therefore, allow these appeals also by setting aside the demand of duty, interest and penalty with consequential relief to the appellants.
4. On perusal of the grounds of appeal, we find that there is no indication that the earlier OIA was challenged by the Revenue. It is also noticed that CBEC vide Circular F.No.390/Misc./163/2010-JC, dt.17.08.2011 held that Revenue would not file appeal below Rs.5 lakhs before the Tribunal. Hon'ble High Court of Karnataka in the case of Commissioner of C.Ex., Bangalore-III Vs Presscom Products 2011 (268) ELT 344 (Kar.) observed that the said circular would be applicable retrospectively. Hence, this appeal filed by the Revenue is liable to be rejected on both the counts.
5. In view of the above discussion, we do not find any reason to interfere the order. Accordingly, the appeal filed by the Revenue is rejected.
(Dictated & Pronounced in Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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