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TMI Blog2017 (2) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... termination is whether an adjudication order can, in the manner natural to protozoa, split into two. 2. Appellant is franchisee of M/s Pepsi Foods Ltd selling aerated drinks through a marketing agency, M/s Amit Agency, and, on the premise that the latter is a dummy front, central excise authorities sought to saddle the depreciation of the fixed assets of M/s Amit Agency, as well as a margin of profit of 15%, on the assessable value of the products cleared by the appellant for the period from March 1994 to December 1994. The show cause notice dated 2nd June 1995 proposed recovery of differential duty of Rs. 32,35,373/-. The adjudicating authority, in order dated 1st October 1995, confirmed only Rs. 7,73,422/- and both Revenue, against the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority thereafter, is in appeal before us now. 5. This impugned order has taken note of the first order of the Tribunal as well as the order passed thereon by the adjudicating authority. Of the amount in dispute as originally computed, i.e. Rs. 32,35,373/- the impugned proceedings confirmed Rs. 24,09,256/- for April-December 1994 and Rs. 2,23,411/- for March 1994 as recoverable. It is also noticed that he has subsumed the de novo order issued subsequent to appeal of assessee in the impugned order. 6. Learned Counsel submits that the second proceedings leading to the impugned order is without legal authority as it has revisited the assessable value arrived at in the de novo order arising from appeal of assessee. While conceding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrence of setting aside, the order impugned in appeal of Revenue ceased to exist and the remand order was consequently unenforceable. More so, as at the time of the remand, a fresh order, though unbeknownst to the bench, substituting the earlier was already in existence. That order continues to exist even today and covers the period of dispute in entirety. Hence, the validity of an order arising out of the second remand is doubtful. 9. The Commissioner who issued the order in 2005 was well aware of the existence of the order of 2002 and that it had, by lack of any appeal thereto, attained finality. Another order re-determining the value of the goods covered in the earlier order is, therefore, without sanction of law. Moreover, by incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistance from both sides of the bar. The adjudicating authority, fully aware that their own appeal was, as yet, pending for disposal in the Tribunal, should have awaited disposal of that appeal before taking up the adjudication. Even when the second order was in possession of the adjudicating authority, and being cognizant of the first de novo order, appropriate clarification should have been sought from the Tribunal. 12. Not having taken corrective steps, the consequences must follow, as surely as night follows day. The impugned order is rendered a nullity and the merits in a null order is beyond the scope of consideration in this appeal. 13. The appellant is discharged of the detriment flowing from the impugned order. Appeal is dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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