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TMI Blog2013 (9) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... y any order passed beyond the facts contained in the show cause notice. Appellant has, therefore, rightly taken a stand that proceedings were taken on the facts not stated in the show cause notice, dated 27-3-2006 and when this was brought to the notice of the lower authorities then either the issue was not framed or the same was brushed aside holding that the issue is not relevant. Any infirmity in the show cause notice cannot be bridged by the adjudication proceedings and the order passed by the adjudicating authority and the first appellate authority. - show cause notice dated 27-3-2006 issued to the appellant did not disclose all the essential facts in the body of the show cause notice in order to defend properly and adjudicating authority has gone beyond the scope of facts narrated in the show cause notice. - Decided in favour of assessee. - E/994/2007 - Final Order No. A/11226/2013-WZB/AHD - Dated:- 27-9-2013 - Shri H.K. Thakur, Member (T) Shri P.P. Jadeja, Consultant, for the Appellant. Shri S.K. Mall, AR, for the Respondent. ORDER This appeal has been filed by the appellant against OIA No. 64/2007 (AHD-II)CE/Raju/Commr(A), dated 28-5-2007 passed by Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d-II)CE/Raju/Commr(A), dated 22-6-2007 against which appellant has filed the present appeal. 3. Shri P.P. Jadeja (Consultant) appearing on behalf of the appellant made the following arguments and argued that appeal be allowed with consequential relief :- (i) That the orders passed by the lower authorities are beyond the scope of show cause notice, dated 27-3-2006 inasmuch as the subject show cause notice no where alleged or proposed clubbing of clearances of Unit I II. It was his case that Para 5 of the show cause notice gives a table showing year-wise clearance value of goods manufactured by the appellant, totally amount to ₹ 71,80,838/- on which duty was demanded. He strongly argued that both the lower authorities have attempted to bring in the fact of clubbing of clearances of Unit-I II without such an allegation being proposed in the show cause notice. It was his case that by not giving these facts in the show cause notice, both the lower authorities have gone beyond the scope of show cause notice. That no show cause notice has been issued to Unit-I of the Company that value of both the units are proposed to be clubbed and that in view of the following case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 721 (S.C.)] (I) Sterling Abrasives Limited v. CCE, Ahmd. [2013 (293) E.L.T. 273 (Tri.-Ahmd.)] 4. Shri S.K. Mall (AR) appearing on behalf of the Revenue defended the stand taken by the adjudicating authority and the first appellate authority. He argued that though the show cause notice has been issued only to Unit-II of the Company but it is an admitted fact that Company has two units and no where in the investigation appellant has stated that they intend to claim SSI exemption separately. He also read out the statement of Shri Gaurang J. Shukla, Director of the Company wherein duty liability has been accepted. It was his case that once appellant has accepted the duty liability, there was no need of showing clubbing of value of clearances in the show cause notice. Learned AR also argued that the entire duty liability has been paid without protest and Settlement Commission has also rejected their application, therefore, appellant has no ground to say that lower authorities have gone beyond the scope of the show cause notice. He also argued that there was no need to issue show cause notice to their other unit as both are one and extended period is also applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earwise, cannot be arrived at without clubbing these value of clearances with the value of clearance of Unit-I of the Company. Such an allegation of exceeding the value of clearances under a Small Scale Exemption notification by clubbing the clearance of both the units have not been made in the show cause notice, which is essential for calculating the disputed duty and giving an opportunity to the appellant to defend their case. The fact that duty calculated in the show cause notice has been arrived at by clubbing of clearance of both the units is also not coming out from any other document or statement relied upon by the investigation. Revenue has therefore, failed to disclose full facts while framing the charges in the show cause notice dated 27-3-2006. 5.1 On the issue of adjudication of a show cause notice beyond the scope of show cause notice and issue of improper show cause notice, Appellant has relied upon several case laws as listed in Para 3(i) (ii) above. In the case of Commissioner of Central Excise, Bangalore v. Brindavan Beverages (P) Limited [2007 (213) E.L.T. 487 (S.C.)] Apex Court held in Para 10 as follows : 10. There is no allegation of the respondents be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice looses its foundation to bring the appellant to the proper charge under the law, the proceeding shall be ill-founded. When the show cause notice did not assign the reason as to why the proposed proceeding has been initiated, a bald statement therein does not meet the end of justice. No doubt, the authorities have examined various items but they have travelled beyond the scope of show cause notice. If the noticee is not brought to charges, he should never face charges by any order passed beyond show cause notice. What that was not a cause cannot be converted into a cause in adjudication order or an appellate order. 11. Ld. Counsel s reliance on the ratio of the decision in Hindustan Zinc Ltd., reported in 2007 (214) E.L.T. 510 (Raj.) deserves consideration when decision of the Hon ble High Court of Rajasthan has been affirmed in Civil Appeal No. CC8147/06 [2007 (214) E.L.T. A115 (S.C.)] and became law under Article 141 of the Constitution. Accordingly, the ratio laid down in paras 3 4 of the judgment insofar as that may be applicable to the present case cannot be lost sight of. 12. In view of peculiar circumstances cited above, it is made clear to both si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (127) E.L.T. 789 3. Ogesh Industries v. CCE - 1997 (94) E.L.T. 88 4. CCE v. Sethia Foods - 2003 (156) E.L.T. 395 5. Dawn Fireworks Factory Ors. v. CCE - 1999 (31) RLT 104 6. CCE v. Maganlal Nandlal Sons - 1999 (113) E.L.T. 597 7. K.R. Balachandran v. Commr. - 2003 (151) E.L.T. 68 8. Velmurugan Engg. v. CCE - 2005 (187) E.L.T. 371 9. Poly Resins v. CCE - 2003 (161) E.L.T. 1136 Vide the Tribunal s decision in the case of CCE v. Sethia Foods (supra), it has been held that when show cause notice is not issued to the dummy unit, clubbing is not permissible. Therefore the demand of duty from CFI and related penalties are not sustainable to the extent it relates to photocopiers relatable to dummy units. 6. In view of the above representative case laws relied upon by the appellant, if a show cause notice does not bring out the charges against the appellant clearly by giving all the relevant facts, the same has been held to be inappropriate proceedings and appeals have been allowed. In the present case also detailed factual matrix of clearances of both units and why duty liability is attracted has not been provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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