2020 (4) TMI 241 - AT - Central Excise

Maintainability of appeal - Jurisdiction - Same company operating with two registrations with two Different PAN - SCN were issued by the Officer in the particular position and so were the Orders-in-Original - appeal dismissed for non-prosecution - Petitioner first filed the appeal before the wrong forum - Later, after transfer of appeal, failed to make pre-deposit - Petition failed appear before the Tribunal - they again failed to appear before the Tribunal in the remand proceedings - recovery of differential Central Excise duty along with interest and penalties. Jurisdiction - HELD THAT - In the hierarchy of the Department of Customs Central Excise, below the Commissioner are the Additional/Joint Commissioner, both are at the same level and the officer after completing some years of service as Joint Commissioner, is granted a non-functional selection grade and is called Additional Commissioner instead of Joint Commissioner. It is not the case that the Joint Commissioner is subordinate to the Additional Commissioner or Additional Commissioner is supervisory authority for the Joint Commissioner. Therefore, at the same post one occupant of the office could be an Additional Commissioner and his successor could be a Joint Commissioner or vice versa - In this case, if the Additional Commissioner has issued the show cause notice and his successor Joint Commissioner decided the matter, we find no infirmity at all in such a decision. As far as the contention that the Unit at Puddukkottai was a joint venture between the appellant and M/s Godavari Prestressed Pipes Structures Pvt. Ltd. is concerned, there is nothing in the records to show that a different legal entity has been created or that a PAN has been taken in the name of a different legal entity. In both the units (at Hyderabad and Puddukkottai), the registration was done in the name of Taaher Ali Industries Projects Pvt. Ltd. i.e. the appellant. Evidently, one legal entity should have been only one PAN. Since the Central Excise Registration is PAN based, once an application is made along with correct PAN, only one Central Excise Registration can be issue - On a perusal of the joint venture agreement entered into by the appellant and M/s Godavari Prestressed Pipes and Structures Pvt. Ltd., it is seen that the name of the joint venture Taher Ali Industries Projects Pvt. Ltd., Hyderabad with the same address as the appellant. Both the units at Hyderabad and Puddukkottai, Tamilnadu are functioning in the name and style of Taher Ali Industries projects Pvt. Limited . Appeal dismissed - decided against appellant.

Summary

Issues:
1. Incorrect filing of appeal and failure to comply with pre-deposit requirements.
2. Multiple Central Excise registrations and evasion of duty.
3. Legal status of the unit at Puddukkottai and joint venture agreement.
4. Authority of Joint Commissioner in issuing adjudication orders.

Issue 1: Incorrect filing of appeal and failure to comply with pre-deposit requirements:
The appellant failed to file the appeal with the correct first appellate authority and did not make the necessary pre-deposit as per Section 35F of the Central Excise Act, leading to the dismissal of the appeal. Despite subsequent directions from the High Court, the appellant's conduct in complying with legal procedures was questionable. The Tribunal observed a pattern of non-compliance and lack of diligence on the part of the appellant throughout the legal proceedings.

Issue 2: Multiple Central Excise registrations and evasion of duty:
The appellant, a single entity, obtained two Central Excise registrations by using different PANs, enabling them to evade detection until investigations revealed the discrepancy. By not considering the clearances of their unit in Puddukkottai as part of the same legal entity, the appellant violated exemption notifications. The Joint Commissioner's order confirmed the demand for differential duty, interest, and penalties, which was upheld by the first appellate authority.

Issue 3: Legal status of the unit at Puddukkottai and joint venture agreement:
The appellant claimed the unit in Puddukkottai was a separate entity and a joint venture with another company. However, examination of records revealed that both units were registered under the same legal entity, using the same name and address. The joint venture agreement was found to be a facade to conceal the true identity of the operations, with the appellant being the sole entity responsible for all activities.

Issue 4: Authority of Joint Commissioner in issuing adjudication orders:
The Tribunal clarified that the Joint Commissioner and Additional Commissioner hold the same level of authority in the hierarchy of the Customs & Central Excise Department. Therefore, if a show cause notice was issued by the Additional Commissioner and the adjudication order was passed by the Joint Commissioner, it did not constitute a procedural irregularity. The Tribunal dismissed the appellant's argument regarding the hierarchy of officers in the department.

In conclusion, the Tribunal upheld the impugned order, rejecting the appellant's appeal based on the findings of the first appellate authority. The appellant's conduct, failure to comply with legal requirements, and attempts to evade duty through multiple registrations were thoroughly examined and deemed unjustifiable. The Tribunal found no merit in the appellant's arguments and upheld the decision on the grounds of non-compliance and evasion of duty.