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TMI Blog2017 (12) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... ily headed by one Shri B.M. Garg, were engaged in the manufacture of Hinges and other hardware articles. Shri B.M. Garg was the proprietor of Garg Industries and was also partners/director in some of the aforementioned appellants companies which had been allegedly created artificially, as separate entities, so as to fragment the value of clearances of excisable goods manufactured and cleared from Garg Industries, in order to wrongly avail the benefit of SSI exemption and thereby evade payment of Central Excise Duty in contravention of the provisions of the Act and the Rules. It appeared to Revenue under the facts and circumstances that appellant company's was only a facade created so as to give the impression that these are separate and independent entities, but in fact the said units are nothing but an extension of M/s Garg Industries, the proprietorship concern of Shri B.M. Garg. Accordingly, show cause notice dated 20.02.2008 (addressed to Garg Industries, B.M. Garg & Krishan Kumar) was issued proposing recovery of duty of Rs. 1,70,51,187/- as duty not paid/short paid on the excisable goods manufactured and cleared by them (all together) during the period February, 2003 to D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent filed a letter dated 18 August, 2011 informing its decision to withdraw the Order-in-Original dated 30 March, 2009. The relevant portion of the same is reproduced hereunder: "that a copy of the said Show Cause Notice dated 21.02.2008 together with an addendum if any, shall be served within a period of four weeks hereof on the petitioner and such other persons from whom the seizure were effected; that they can be granted an opportunity to reply to the Show Cause Notice/Addendum and produce whatever material they would choose in answer to the Notice in their defence and that after grant of an opportunity of personal hearing, fresh order shall be passed within a period of six months adjudicating the above-mentioned show cause notice subject to the petitioner co-operating with the department to adhere to the time limit stated and they do not seeking any unavoidable adjournments." 7. The Hon'ble Supreme Court taking into consideration the letter dated 18 August, 2011, disposed of the SLP by observing that nothing survives in the said petitions as the Order-in-Original dated 30 March, 2009 has been decided to be withdrawn. Accordingly, the Hon'ble Supreme Court passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of Rs. 40 lakhs paid during investigation. Further demand of Rs. 6,109/- was confirmed against Garg Industries on some shortage of finished goods found during inspection, further, a sum of Rs. 6,109/-, already debited in the Cenvat Account was appropriated. Further duty of Rs. 9,743/- as proposed was confirmed against the Garg Industries involved on the goods allegedly removed clandestinely. Further, demand of duty Rs. 1,94,485/- was also confirmed against Garg Industries being goods found loaded on truck number HR 38-A/4705 valued at Rs. 11,91,700/-. Further, ordering vacation of the seized quantity of excisable goods valued at Rs. 11,91,700/-, further ordering confiscation of goods valued at Rs. 83,65,346/- in terms of Rule 25 of CER, 2002, seized from the different premises of the appellants herein and considered aggregating the same in the hands of Garg Industries as proposed in the addendum dated 16 September, 2011. Further option to redeem was given to the Garg Industries, Monica Steel Private Ltd, DD Hardware Private Ltd, Deepak Hinges Private Ltd, Doordevices Manufacturing Company, Jai Hardware Private Ltd and D.P. Garg Exports Ltd. jointly and severally to redeem th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. In support of the said plea, the Learned Counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Sarguja Transport Service Vs State Transport Appellate Tribunal, M. P., Gwalior & Ors (1987) 1 SCC 5. (iv) Reliance was also placed on the decision of this Tribunal in the case of Collector of Central Excise, Belgaum Versus Modern Mills Ltd., Hubli - 1986 (23) ELT 183 (T) wherein it has been held that there is no provision in the Central Excise Act, under which the adjudicating authority, having passed an order under the law, can cancel it and initiate fresh proceedings arising from the same SCN until and unless leave is obtained from the higher authority/Court. (v) It was also submitted that once the Order-in-Original dated 30.03.2009 is passed by the adjudicating authority against the three appellants while adjudicating the SCN issued to the said three appellants, the said SCN issued to the said three appellants merged with the Order-in-Original passed against them and, thereafter, no SCN was available for fresh adjudication. In support of this plea, the Learned Counsel relied upon the decision of the Hon'ble Andhra Pradesh High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire case of the appellant M/s Garg Industries is that the SCN dated 20 February, 2008 was adjudicated earlier vide Order-in-Original dated 30 March, 2009. The said Order-in-Original having been withdrawn by the Department, in the appeal/proceedings before Hon'ble Supreme Court wherein the said appellant was not even party, the permission obtained for fresh adjudication will not apply in its case. It amounts to abandoning the right of the Department, so far as the appellant M/s Garg Industries are concerned. We are prima facie of the view that withdrawal of the earlier adjudication order dated 30 March, 2009, without reserving liberty to proceed from the stage subsequent to the stage of the show cause notice dated 20 February, 2008 against M/s Garg Industries and of other concerned parties, we find no lawful authority for proposing a fresh adjudication order viz., the impugned order. We agree with the contentions of the appellant that in view of the withdrawal of the earlier adjudication order without reserving liberty to proceed from the stage of the SCN dated 20 February, 2008 against Garg Industries, we find no lawful authority for passing fresh Order-in-Original, being the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transport Appellate Tribunal, M.P., Gwalior and others reported at (1987) 1 SCC 5, wherein it has been held as under: "..... The principle underlying Rule 1 of Order XXIII of the Code of civil procedure is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it......... In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court." 13. Applying the ratio of the Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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