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TMI Blog2004 (1) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed the demand of duty of Rs. 10,85,066/- under proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944 and ordered adjustment of Rs. 3,50,000/- already paid by the assessee against this demand and he has also imposed mandatory penalty of Rs. 10,85,066/- under Section 11AC of the Central Excise Act, 1944. He further ordered recovery of interest in terms of Section 11AB. He has also imposed penalty of Rs. 1,70,000/- on V. Sathyanarayana and Rs. 1,10,000/- on V. Ramesh under Rule 209A of Central Excise Rules, 1944. 2. It is submitted that an amount of Rs. 3,50,000/- paid by the Appellant and confirmed by the Lower Adjudicator, may be treated as Pre-deposit and the Main Appeal itself decided as there is an incurable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerns as mentioned in para 3 of the Order-In-Original are as follows : (i) M/s. Sri Vaasavi Printers, a partnership firm situated at 20A, Balaji Nagar, 1st Street, Royapettah, Chennai-14. (ii) M/s. SVS Graphics, a proprietory concern situated at No. 31 and 32, Peters Road, Royapettah, Chennai-14. (iii) M/s. V.M. Graphics, a proprietory concern situated at No. 24/1, Misa Ali Gulam Street, Royapettah, Chennai-14. 4. The Lower Adjudicator contends that SVS Graphics and VM Graphics are dummy units of Sri Vaasavi Printers and therefore, the turnover of the alleged two dummy units are to be added to the turnover of the first unit to determine the eligibility of SSI exemption of the first unit. The appellants sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a post facto show cause notice cannot be regarded as adequate in law. SKN Gas Appliances v. CCE - 2000 (120) E.L.T. 732 (T) : SSI Exemption - Value of clearances - Clubbing of the value of clearances for determination of aggregate value on the ground that one of the units fully owned and controlled by the parent unit - No show cause notice issued to the alleged dummy unit whose clearances proposed to be clubbed with those of the main unit - Impugned Order held to be bad in law and set aside - Notification No. 175/86, dated 1-3-86 and No. 1/93, dated 28-2-93. Ramsay Pharma Pvt. Ltd. v. CCE - 2001 (127) E.L.T. 789 (T) : SSI Exemption - Value of clearances - Clubbing of - Show Cause Notice - Demand raised by clubbing of clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected. Dawn Fireworks Factory Ors. v. CCE - 1999 (31) RLT 104 (CEGAT): The department has raised grounds for clubbing of units, which were in existence and carrying out transactions, admittedly there was business transactions and the Bench referred them as group of Dawn Industries. This fact itself is not sufficient to hold that the second unit namely DFI is a dummy unit.......In this case particularly, there is an existence of unit and the department was required to have shown he financial flow back and sharing of profits and for that they ought to have issued show cause notice to the other unit, which has not been in the present case and in view of the judgment rendered in the case of Ogesh Industries and in the case of Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etals Pvt. Ltd., cited supra, as the Show Cause Notice is already invalid, there can be no recovery by excluding the value of clearances pertaining to M/s. SVS and M/s. VM Graphics. 6. I find from the records that though the Investigating Agency has marshalled considerable data, the non-issuance of Show Cause Notice is a fundamental and non-curable error as held by the Hon ble Tribunal in 2001 (137) E.L.T. 1020 (Tri. - Chennai) Pendium Computer Academy v. CCE, Coimbatore wherein it is held that : Demand for short levy under Section 11A of Central Excise Act, 1944 with Rules 9 and 49 of Central Excise Rules, 1944 - Show Cause Notice - Non-issuance of show cause notice is a fundamental and non-curable error, hence, demand not to be confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces must not be waived and the same should be issued and served on the concerned parties. However, if the concerned party requires expeditious adjudication for any reasons, they may file their replies at the earliest, and request that their case be heard expeditiously for early finalisation of the adjudication proceedings. 3. These instructions should be adhered to strictly. In Veera Spg. Mills (P) Ltd. v. CCE, Coimbatore - 2001 (131) E.L.T. 437 (Tri. - Chennai), the importance of the above Circular is emphasized : Show cause notice - Issue of notice under Central Excise mandatory unlike customs even if party opts to waive it - Section 11A of Central Excise Act, 1944 - C.B.E. C. Circular No. 290/6/97-CX, dated 20-1-1997. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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