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TMI Blog2003 (1) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... a partnership firm of which M.U. Upasani was a partner. M/s. Rajguru Chemicals was the proprietary concern of S.U. Upasani. M/s. Rajguru Industries were also similarly placed. The notice was also issued to M/s. Mahila Griha Udyog Lijjat Papad and Shri J.S. Thakkar their employee. These three units were on job work basis manufacturing and supplying acid slurry to M/s. Mahila Griha Udyog Lijjat Papad. The allegation made in the notice was that although the three manufacturing units were claimed to be independent on record, they were in fact one since the premises and the labour force was the same and since all three units were controlled by members of the same family. The duty was demanded on the basis of the combined clearances. Allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. The Commissioner (Appeals) in terms of Section 35F of the Central Excise Act, 1944 dismissed the two appeals. Hence the two appeals and two applications by M/s. Rajguru Chemicals, and its proprietor M.U. Upasani. 5. In the meanwhile, in terms of directions made by the jurisdictional Commissioner in terms of Section 35E(4) of the Act, applications were made to the Commissioner (Appeals) to examine the legality of the order passed by the Additional Commissioner. The Commissioner (Appeals) on hearing the assessees passed orders. In his orders he held that the evidence disclosed in the show cause notice was sufficient to establish the unity of the three manufacturing units. He therefore directed payment of the combined dues by M/s. Kwali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner the Commissioner (Appeals) has re-appreciated it in a different prospective. He had also in the first order passed, he had by default upheld the Additional Commissioner s order of imposing of penalty of Rs. 1 lakh on M.U. Upasani. But in the second order-in-appeal he has raised it to Rs. 3 lakhs. In the first order there was no reference to the buyers but in the second order he has chosen to impose penalty on the buyers and their employee. Shri Sahasrabudhe clarifies that he is not representing the buyers. 8. The provisions of Section 35 governing the powers of the Commissioner (Appeals) were modified vide Section 128 of the Finance Act, 2001. Before this amendment his powers under sub-section (3) were to pass such orders as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authorities. In the decision the Member also cited the Andhra Pradesh High Court judgment in the case of Thimmasamudram Tobacco Co. v. ACCE - AIR 1961 AP 324 to the effect that remanding a matter to the lower forum was a power inherent in an appellate authority. 9. From the discussions above we find several interesting issues arising out of the second named order of the learned Commissioner (Appeals). Pending resolution of the issues we deem it proper to grant the prayer and to waive the pre-deposit of the duties confirmed and penalties imposed and to stay their recovery during the pendency of the appeal. 10. When these appeals are listed for final hearing appeal E/2220/2002-Mum filed by Gurudev Industries and appeal E/2221/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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