9911796707
TMI Blog2005 (1) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... /2001 are filed by the Appellant No. 1, M/s. Chandana Plastics Ltd. and M/s. Chaithanya Polypack Industries, Visakhapatnam (herein after referred to as Appellant No. 2 ) respectively, whereas the Appeal No. E/899/2001 is filed by the Revenue (Appellant No. 3) against the common impugned Order-in-Original (Adjudication Order) No. 42/2000-SP, dated 10-10-2000. There is also a ROM application in respect of CESTAT [2005 (179) E.L.T. 581 (Tribunal)] Final Order No. 676/SZB/2004, dated 12-10-2004 in Appeal No. E/52/2003 (against the Order-in-Original (Adjudication Order) No. 44 45/2002-RP, dated 7-10-2002) filed by the Appellant No. 2, M/s. Chaitanya Polypack Industries. Since all the issues in these appeals are inter-related, we are passing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant No. 2 was considered by the Revenue as a dummy unit, while demanding duty, clearances of both the units were clubbed. The show cause notice contains the following Annexures :- Annexure I : Statement showing the clandestine clearance effected with payment of duty. Period 1996-99. Annexure II Details of clearances of film without payment of duty under slips/chits found attached to the private delivery challans. Period-1997-99. Annexure III : Clandestine clearance during the year 1997-98 as per private records. Annexure IV : Statement showing the basis of value for the polyethylene bags manufactured and cleared out of the LLDPE and LDPE Granules. Annexure V : Statement showing the list of instances where invoices were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 and the Appellant No. 2 have also appealed against the same order on the following grounds :- (1) The show cause notice alleges that the Appellant No. 1 and Appellant No. 2 are not independent unit and the later is only a dummy unit. The Commissioner decided the issue without giving an opportunity for the Appellant No. 2 to defend their case by granting a personal hearing as requested by them. This is a gross violation of the principles of Natural Justice . (2) The adjudicating authority indicated the duty liability in the six Annexures to the show cause notice. However, instead of discussing the duty liability, year-wise and annexure-wise, he has simply demanded total liability of duty and imposed equivalent penalty wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 12th May, 2000. Rule 52A was also omitted. Rule 173Q contains sub rule and the show case notice does not mention under which sub rule the penalty is proposed. (7) If the demand under Rule 9(2) is not sustainable, mandatory penalty under Section 11AC and interest under Section 11AB cannot be imposed. Even penalty under Rule 209A cannot be sustained. 5.We have heard Shri S.V. Ratanam, learned Advocate appeared for the Appellants No. 1 2 and Shri L. Narasimha Murthy, learned SDR appeared for the Revenue. 6.On a very careful consideration of the entire issue, we find that the adjudicating authority has not given a speaking order. The show cause notice contains six Annexures quantifying duty liability of the Appellant No. 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant No. 1 appealed to CESTAT and CESTAT Circuit Bench at Hyderabad in its Final Order No. 1676/SZB/2004, dated 12-10-2004 have upheld the Order-in-Original No. 44 45/2002-RP, dated 30-9-2002 even though the appeal of the so called dummy unit, M/s. Chaitanya Polypack Industries, was pending before the Tribunal. In the above order, the Tribunal has observed as follows :- We find that in earlier Order-in-Original No. 42/2000, dated 10-10-2000 the Commissioner had held that M/s. Chaitanya Polypack industries is a dummy unit and that the value of clearances of both were required to be clubbed and appeal against the said order is pending before the Tribunal. The finding that one is a dummy of the other is based inter alia upon the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Order-in-Original No. 42/2000, dated 10-10-2000. Since we have set aside the Order-in-Original dated 10-10-2000 and remanded the matter to original authority, we do not have any other option but to recall the Final Order No. 1676/SZB/2004, dated 12-10-2004. Hence the ROM is allowed. 8.As the Tribunal Final Order No. 1676/SZB/2004, dated 12-10-2004 has been recalled and also in view of the remand of the Order-in-Original No. 42/2000, dated 10-10-2000, we have to remand the Order-in-Original Nos. 44 45/2002, dated 30-9-2002 also. Therefore, the Appeal Nos. E/60/2003 of the Appellant No. 1 and E/52/2003 of the Appellant No. 2 are disposed of in this manner. 9.Summing up :- (i) We remand the Orders-in-Original No. 42/2000, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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