Jalandhar (Hq At Chandigarh) vs M/S Ess Davindera Processors Pvt.Ltd

[Arising out of OIA No.249/CE/Chd/06, dt.30.03.2006 , passed by Commissioner of Central Excise & Customs (Appeals), Jalandhar]

Commissioner, Central Excise & Service Tax,

Jalandhar (HQ at Chandigarh) Appellant

Vs

M/s Ess Davindera Processors Pvt.Ltd. Respondent

Represented by:

For Appellant: Shri A.K. Singh, Authorised Representative

For Respondent: None

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

Mr. P.S. Pruthi, Honble 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:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

MR. P.S. PRUTHI, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:22.01.2015

Final Order No.51103/2015

Per: P.K. Das

1. None appears on behalf of the Respondents. There is no application for adjournment.

2. After hearing the ld.Authorised Representative for the Revenue and on perusal of the records, we find that the Respondent was working under Compounded Levy Scheme under Rule 96ZQ of the erstwhile Central Excise Rules, 1944. The dispute relates to the claim of abatement and determination of duty under the said Rule. The Adjudicating Authority confirmed the demand of duty of Rs.10,45,173.00 along with interest and imposed penalty of equal amount of duty and allowed the abatement partly. The Revenue filed appeal before the Commissioner (Appeals), against the order of the Adjudicating Authority sanctioning the abatement of Rs.2,26,684.00. By the impugned order, the Commissioner (Appeals) rejected the appeal filed by the Revenue.

3. On perusal of the grounds of appeal filed by the Revenue, we find that in ground No.(i), the Revenue contended as under:-

(i) The Commissioner (Appeals) has failed to take into consideration that the show cause notice C.No.V(54,55)15/111/99/10034-38 dt.29.06.99 issued by the Assistant Commissioner, Central Excise Division, Amritsar to the party seeking payment of outstanding duty of Rs.12,71,857/- for January 1999 and February 1999 and proposing penalty under Rule 96 ZQ (5) was already decided earlier by the then Additional Commissioner (P&V) vide Order-in-Original No.34/CE/ADC/2000, dt.30.03.2000, wherein the whole demand of Rs.12,71,857/- was confirmed with interest and a penalty of Rs.19,03,903/- was imposed (Rs.12,72,857/- for January 1999 and February 1999 + Rs.6,31,046/- on delayed payment for March 1999, May 1999 and June 1999). Further, the partys appeal against the said order before the Commissioner (Appeals) was dismissed vide Order-in-Appeal No.145/CE/CHD-II/2002, dt.27.03.2002 under Section 35F of the Act for failure to deposit of Rs.10 lakhs. Thus, the said order attained finality as no further appeal was filed by the party. However, inadvertently in April 2004, the same show cause notice was again taken up for adjudication which was beyond jurisdiction and without locus standi. Further, the Order-in-Appeal No.145/CE/CHD-II/2002, dt.27.03.2002 had already decided the issue and the same has attained finality as the part has not filed any appeal against that order. Thus the re-adjudication of the same show cause notice dt.29.06.1999 was without jurisdiction and should have been quashed by the Commissioner (Appeals).

4. It appears from the above ground that the same Show Cause Notice was decided by the earlier adjudication order. This fact was not examined by the Commissioner (Appeals). Accordingly, we set aside the impugned order and the matter is remanded to the Commissioner (Appeals) to decide afresh, after considering the grounds of appeal of the Revenue as stated above. Needless to say that the Commissioner (Appeals) shall give an opportunity of hearing to the Respondent before passing the order.

5. The appeal filed by the Revenue is allowed by way of remand.

(Dictated & Pronounced in Court)

(P.S. Pruthi) (P.K. Das)

Member (Technical) Member (Judicial)

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