M/S K.C. Pipes Pvt. Ltd vs C.C.E. Chandigarh

[Arising out of Order-in-Appeal No. 4-8/CE/CHD/2007 dated 31.01.2007 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chandigarh].

For approval and signature:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s Dharam Steel Tubes Pvt. Ltd.

Shri Yashpal Goel, Director

Shri Shiv Kumar Goel, Director

M/s K.C. Pipes Pvt. Ltd. .Appellants

Vs.

C.C.E. Chandigarh .Respondent

Appearance:

Shri Kamaljeet Singh, Shri B.L. Narsimhan, Advocate for the Respondent

Shri Ranjan Khanna, DR for the Appellants

CORAM:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 19.02.2015

FINAL ORDER NO. 50549-50552/2015EX (DB)

Per Ashok Jindal:

The appellants are in appeals against the impugned order confirming demand on duty against M/s. Dharam Steel Tubes Pvt. ltd. for Rs. 80,73,728/- against K C Pipes Ltd. for Rs.10,95,852/- and imposition of penalty of Rs.1,04,90,285/- on M/s. Dharam Steel Tubes Pvt. Ltd. and penalty of Rs.35,62,845/- on Shri K C Pipes Pvt. Ltd. Rs.10 lakhs each on Shri Yashpal Goel and Shri Shiv Kumar Goel.

2. The facts of the case are that after conducting investigation it was alleged that M/s. Dharma Steel Tubes Pvt. Ltd. and M/s. K P Pipes Pvt. Ltd. are controlled by one person and their source of raw material is same and their customers are also same. Therefore, the clearance of both the units were clubbed. The another issue is that the appellant M/s. Dharma Steel Tubes Pvt. Ltd. have been clearing the dutiable goods in the guise of trading firm in the name of Kapoor Chand Kishan Lal (KCKL). The show cause notice were issued to the appellant and after considering the submissions the show cause notice was adjudicated and impugned demands as stated in para 1 were confirmed along with interest and penalties on all the appellants were also imposed.

3. The Ld. Counsel for the appellant submits that the clubbing of the clearance of Dharma Steel Tubes Pvt. Ltd. and M/s. K C Pipes & Ltd. were sought on the ground that one person controlled them and their sources of raw material is same and their customers are also same. This cannot be the ground for clubbing as both the units are private ltd company and only 23% of the share holding are of one family and other shareholders are not related persons. There is no evidence regarding financial flaw back. Therefore, the clubbing cannot be done. Therefore, the clearance of the excisable goods cannot be clubbed. He further submitted that other allegation against the appellants are that M/s. Dharma Steel Tubes Pvt. Ltd. is clearing excisable goods through the firm namely M/s. KCKL, a trading firm. In fact, during the course of the adjudication the Ld. Counsel sought Cross examination of certain witnesses and some other evidences to place on record but same had not been considered by the Adjudicating Authority. Therefore, impugned order is to be set aside and remanded matter back to the Adjudicating Authority for de novo adjudication.

4. On the other hand Ld. AR supported the impugned order and submits that the Adjudicating Authority has considered the issue from each and every angle. Therefore, matter is not required to be remanded back.

5. Heard the parties. Considered the submissions.

6. In this case the Ld. Counsel for the appellant sought Cross examination of Shri Rahul Jain prime witness and whose statement has been recorded and relied by the Adjudicating Authority in the impugned order. Therefore, the Cross Examination on Shri Rahul Jain, Shri Vjay Singh, Shri Ashok Kumar & Shri Dalip Singh is required for fair trial of the case. Moreover, the evidence which was sought by the appellant to bring on record have not been considered. Moreover the issue of clubbing was also not considered properly. Therefore, we are of the opinion that in the interest of justice matter is to be remanded back by to the Adjudicating Authority to decide both the issues afresh namely clubbing of clearance of both the units and thereafter the issue of clandestine removal of the goods in the guise of trading firm M/s. KCKL with these observations, we set aside the impugned order and remand matter back to the Adjudicating Authority for fresh adjudication as discussed above

7. It is pertinent to mention here that Adjudicating Authority shall give reasonable opportunity to the appellant to present their case and thereafter shall adjudicate the matter on its own merits.

8. Appeals are disposed off by way of remand.

(Dictated and pronounced in the open court)

(Ashok Jindal) (Rakesh Kumar) Member (Judicial) Member (Technical)

Bhanu

2

E/892-895/2007-EX(DB)