2020 (5) TMI 61 - HC - Central Excise

Stay of impugned order during pendency of the appeal - impleadment as a respondent - SSI Exemption - clubbing of clearances - HELD THAT - The court is of the view that a prima facie case has been made out for grant of exparte interim relief. Issue Notice, returnable on 29th January, 2020 - By way of ad-interim relief, the operation of the impugned order M/S JOLLY ELECTRICAL INDUSTRIES AND NILESH V SHAH VERSUS C.C.E. S.T. VADODARA-II 2019 (10) TMI 95 - CESTAT AHMEDABAD is hereby stayed.

Issues Involved:
Stay of impugned order dated 1st October 2019 by Customs, Excise & Service Tax Appellate Tribunal during appeal; Maintaining appeal against specific party only; Restoration application dismissal by Tribunal; Confirmation of central excise duty against dissolved partnership firm; Perverse findings by Tribunal on appeal parties; Clubbing of clearances of different units in appeal.

Detailed Analysis:

1. Stay of Impugned Order:
The applicant sought a stay of the impugned order dated 1st October 2019 by the Customs, Excise & Service Tax Appellate Tribunal during the pendency of the appeal. The court, considering the submissions, found a prima facie case for granting ex-parte interim relief and issued a notice returnable on 29th January 2020, staying the operation of the impugned order.

2. Maintaining Appeal Against Specific Party:
The appeal by the revenue before the Tribunal was against M/s. Jolly Electrical Industries alone, as indicated in the appeal number and notice for hearing. The Tribunal had allowed the appeal ex-parte and remanded the matter. The applicant contended that the appeal was not maintainable due to failure to file appeals against other parties, M/s. Jolly Enterprises and M/s. Kinitronics. Various decisions were cited to support this argument.

3. Restoration Application Dismissal:
The applicant moved an application for restoration of the appeal and recalling of the order passed by the Tribunal, which was dismissed on the ground that it was a case of remand and no valid reasons were provided for restoration. Subsequently, a demand for central excise duty and SED was confirmed against M/s. Jolly Electrical Industries, along with penalties and confiscation orders.

4. Confirmation of Central Excise Duty Against Dissolved Partnership Firm:
The partnership firm, M/s. Jolly Electrical Industries, was dissolved by operation of law due to the death of two partners before the issuance of the show cause notice. Despite this dissolution, the demand for central excise duty was confirmed against the firm, along with penalties and confiscation orders.

5. Perverse Findings by Tribunal on Appeal Parties:
The Tribunal, in the impugned order, recorded a finding that the appeal by the revenue was against all parties and not just M/s. Jolly Electrical Industries. The applicant argued that this finding was perverse to the record of the case, citing the application under section 35E (1) of the Central Excise Act, which clearly impleaded only M/s. Jolly Electrical Industries as a respondent.

6. Clubbing of Clearances of Different Units in Appeal:
The applicant referred to previous Tribunal decisions to support the argument that when the revenue files only one appeal against a specific unit, the adjudication order becomes final against other units not impleaded in the appeal. In this case, since the other two units were not parties to the appeal, their clearances should not have been clubbed with M/s. Jolly Electrical Industries.

In conclusion, the High Court granted an ex-parte interim relief staying the impugned order, considering the arguments regarding the maintainability of the appeal against specific parties and the dissolution of the partnership firm. The court found merit in the contentions raised by the applicant regarding the appeal parties and clubbing of clearances, indicating potential issues with the Tribunal's findings.

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