S.M.M. Steels Re-Roling Mills Pvt Ltd vs Commissioner Of Central ...

[Arising out of Order-in-Appeal No. 15-16-2009 dated 02/03/2009 passed by CCE(Appeals), Cochin]

[Arising out of Order-in-Appeal No. CAL-EXCUS-000-APP-028-13-14 dated 22/04/2014 passed by Commissioner of Central Excise , COCHIN( Appeal) ]

[Arising out of Order-in-Appeal No. 95-2007 dated 21/11/2007 passed by Commissioner of Central Excise , COCHIN( Appeal) ]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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?

S.M.M. STEELS RE-ROLING MILLS PVT LTD UNIT-I, INDL DEVELOPMENT AREA, GANJIKODE, PALAKKAD Appellant(s)

PARAMASIVAM MANAGING DIRECTOR, S.M.M. STEEL RE-ROLLING MILLS PVT LTD, UNIT I, INDL DEVELOPMENT AREA, KANJIKODE, PALAKKAD Appellant(s)

Smm Steel Re Rolling Mills Pvt Ltd Industrial Development Area, Kanjikode West PALAKKAD - 678623 AP Appellant(s)

S.M.M. STEEL RE-ROLLIN GMILLS PVT LTD UNIT-II, 358/2, NEW INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD Appellant(s)

Versus

Commissioner of Central Excise,Customs and Service Tax CALICUT NULL CENTRAL REVENUE BUILDING, MANANCHIRA, CALICUT, KOZHIKODE, - 673001 KERALA Respondent(s)

Appearance:

Shri B. Venugopal, Advocate SWAMY ASSOCIATES G-8, FORTUNA ICON APARTMENTS, JODIDHAR ASWATHAPPA FARM, BEHIND NAGARJUNA, SAHAKAR NAGAR, BANGALORE - 560092 KARNATAKA For the Appellant

Shri R. Gurunathan, Addl. Commisisoner(AR) Dr. A.K. Nigam, Addl. Commissioner(AR) Shri Mohd. Yusuf, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 10/03/2015

Date of Decision: 10/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20666-20669 / 2015

Per : B.S.V. MURTHY

All the 4 appeals are connected with each other and therefore all the appeals are taken together and a common order is passed.

2. Appeal No.E/190/2008 is filed by SMM Steel Re-Rolling Mills, Unit-II. This appeal is filed against the impugned order wherein central excise duty of Rs.2,27,260/- has been confirmed on the ground that there were clandestine clearances from the unit during the month July 2003. The second unit of the appellant viz. Unit-I has filed appeal No.E/522/2009 against the demand of central excise duty confirmed against that unit amounting to Rs.7,20,886/- relating to the clearances in July 2003 on the same ground of clandestine clearance of ingots manufactured by the appellants. An appeal No.E/523/2009 has been filed by Shri Paramasivam against penalty of Rs.50,000/- imposed in the adjudication order passed against Unit-I of the appellant company. Sl.No.26 in todays cause list is the appeal filed by the appellant against another OIA passed by the Commissioner(Appeals). This has arisen because Revenue has filed an appeal against omission of three invoices for demanding duty on clandestine removal in the OIO and Commissioner(Appeals) has allowed the appeal and as a result, the demand in respect of three invoices omitted has also been confirmed but not quantified.

3. Both the show-cause notices against Unit-I and Unit-II arise from the same set of investigations conducted by the DGCEI officers. At the outset the learned counsel pointed out that in paragraph 9 of the show-cause notice issued to Unit-I, Sl.No.35 to 42 of the table show the clearances on 28/07/2003 to Gasha Steels and these clearances have been taken into account for confirming the demand against Unit-I. The very same serial numbers and very same details have been taken into account for confirming the demand against Unit-II also. Therefore it was shown clearly that there is duplication.

4. Since the demands in both the orders have been confirmed on the basis of note pad, duplicate invoices found, the duplication in both the show-cause notices and confirmation in respect of same clearances as a result of adjudication of both the show-cause notices can be said to have been shown to my satisfaction. Therefore I consider that the three impugned orders have to be set aside and the matters should have been remanded with a direction to the original adjudicating authority to consider both the show-cause notices issued to Unit-I and Unit-II together and pass an order. At this juncture, the learned counsel pointed out that in respect of one Unit, it was Assistant Commissioner and in respect of another unit, it was Additional Commissioner. However, there is a Boards circular saying that when there are two adjudication orders to be passed and one falls within the power of lower authority and another within the power of higher authority, higher authority can adjudicate both the show-cause notices. Therefore Additional Commissioner or the Jt. Commissioner as the case may be may adjudicate both the show-cause notices.

5. The original adjudicating authority in respect of the appeal filed by Unit-I has dropped substantial portion of the demand. Since the Department is not in appeal, the original adjudicating authority cannot go into this issue again. The same applies to the other order also if the Assistant Commissioner or the adjudicating authority has decided that certain portion of the demand cannot be sustained, that will stay. As regards the remaining issues, I make it clear that I have not expressed any opinion even though the matter was heard for quite some time and the details were brought to my notice. The appellants are at liberty to produce all the evidences as regards the demands confirmed by the original adjudicating authority and the Commissioner(Appeals) in the first round of litigation. Appeals are disposed of in above manner.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

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