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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 ..... der 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 impugned order. We hold that the Commissioner is not correct in passing a fresh Order-in-Original dated 31 March, 2013, in respect of the same subject matter for the same period, since the earlier Order-in-Original dated 30 March, 2009 was withdrawn in the separate proceedings, in which some of the present appellants were not even party. Therefore, there was no question of seeking permission from the Hon'ble Supreme Court in the case of appellant-M/s Garg Industries to pass a fresh adjudication order. By withdrawing the earlier Order-in-Original dated 30 March, 2009, which was passed again Garg Industries and two individuals, without obtaining permission to pass fresh adjudication order against them, would amount to abandoning the proceedings against the said three parties. There is no provision under the Central Excise Act, 1944, which grants power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of SSI exemption with further proposal to appropriate the amount of ₹ 40 lakhs, already deposited during investigation plus some other demands were also raised of smaller amount of less than ₹ 2 lakhs on the allegation of shortage of finished goods or some other discrepancy. Further it was proposed to confiscate seized goods valued at ₹ 11,91,700/- loaded in truck number HR 38-A/4705 recovered from the premises B-150, Sector 6, Noida and alleged to be cleared clandestinely from the factory premises of Garg Industries with further proposal that the quantity of excisable goods seized at various premises of Garg Group of Industries, valued together at ₹ 95,57,046/- be not confiscated with further proposal to impose penalty and also proposal for confiscation of seized truck valued at ₹ 3 lakhs which had been utilized for alleged clandestine removal. 3. The SCN was adjudicated on contest by the Commissioner, Central Excise, Noida vide Order-in-Original No.16/Commissioner/Noida/2009 dated 30 March, 2009 vide which the aforementioned proposed demand of duty was confirmed alongwith confiscation and further penalties were imposed. This show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following order dated 19 August, 2011: Counsel appearing for the respondents (department) on instructions which are placed on record, states that the department had taken a decision to withdraw the Order-in-Original dated 30.03.2009. Since the Order-in-Original dated 30.03.2009 is being withdrawn, practically nothing survives in these matters. We grant permission to the respondent/department to withdraw the said order. It is, however, made clear that further action, if any, could be proceeded with in accordance with law. The petition stands disposed of in terms of the aforesaid order. 8. Accordingly, the respondent-Revenue on 14 September, 2011 withdrew the Order-in-Original dated 30 March, 2009. Consequently, the pending Appeal Nos. 2055, 2053 and 2057/2009 filed by Shri. B.M. Garg, Garg Industries and Shri Krishna Kumar were disposed of by this Tribunal, holding the same as infructuous, as the Order-in-Original under challenge itself was withdrawn by the Adjudicating Authority vide Final Order of the Tribunal dated 15 September, 2011. 9. Thereafter, separate addendums were issued dated 16 September, 2011, on the other appellants herein namely, Moni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.P. Garg Exports Ltd. jointly and severally to redeem the same on payment of fine ₹ 20 lakhs. Further penalty of ₹ 1,72,61,524/- was imposed on Garg Industries under Rule 25 of CER, 2002 read with Section 11 AC of the Act. Further penalty of ₹ 30 lakhs was imposed on Shri B.M. Garg under Rule 26 of CER, 2002. The truck no. HR 38-A/4705 owned by Shri Krishna Kumar valued at ₹ 3 lakhs was also confiscated with option to redeem on payment of redemption fine ₹ 5000/- and as the truck was provisionally released on deposit of security ₹ 5000/- and bond, the amount of security was appropriated. Further, penalty was ₹ 50,000/- was imposed on Shri Krishna Kumar, the transporter under Rule 26 of CER, 2002. 10. Assailing the impugned Order-in-Original, Shri Rupesh Kumar, advocate appearing for all the appellants have made the following submissions: (i) There is no provision under Central Excise Act to adjudicate same Show Cause Notice twice against assessees who are parties to the said Show Cause Notice. (ii) With regard to the order dated 19.08.11 of the Hon ble Supreme Court whereby permission was granted to the Department to withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this plea, the Learned Counsel relied upon the decision of the Hon ble Andhra Pradesh High Court in the case of Vuppalamritha Magnetic Components Ltd. Vs DRI (Zonal Unit), Chennai - 2017 (345) ELT 161 (AP). (vi) The Learned Counsel also referred to the Stay Order dated 20.02.14 passed by the Tribunal in the present appeals whereby direction was issued to the department to file an affidavit stating the particulars of the authority who passed order of withdrawal. He submitted that pursuant to the said directions, one affidavit dated 25.03.14 was filed on behalf of department by Smt. Shalinee Sharma, Assistant Commissioner, Central Excise Division-III and, another affidavit dated 09.12.16 was filed by Shri Syed Vaseem Hasan, Principal Commissioner, Central Excise Commissionerate, Noida-I, pursuant to the directions of the Tribunal during the course of subsequent hearing. However, in none of the two affidavits, the department could either state the source of power for such withdrawal nor dispute or deny the fact that Garg Industries and the two individuals were not parties to the proceedings before the Hon ble Supreme Court. (vii) Clubbing of clearances in not permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20 February, 2008 against Garg Industries, we find no lawful authority for passing fresh Order-in-Original, being the impugned order. We hold that the Commissioner is not correct in passing a fresh Order-in-Original dated 31 March, 2013, in respect of the same subject matter for the same period, since the earlier Order-in-Original dated 30 March, 2009 was withdrawn in the separate proceedings, in which some of the present appellants were not even party. Therefore, there was no question of seeking permission from the Hon'ble Supreme Court in the case of appellant-M/s Garg Industries to pass a fresh adjudication order. During the course of arguments, specific question was put to the learned AR as to whether any permission was sought from the Hon ble Supreme Court against Garg Industries and two individuals, who were not even parties before the Apex Court, and if so, to file affidavit of the senior officer in the Department. Pursuant to the directions, affidavit dated 9 December, 2016 was filed by the Principal Commissioner, Central Excise Commissionerate, Noida. However, the said affidavit is also silent on this vital aspect. Further, the order of the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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 Sarguja Transport Service (supra), we hold that by withdrawing the earlier Order-in-Original dated 30 March, 2009, which was passed again Garg Industries and two individuals, without obtaining permission to pass fresh adjudication order against them, would amount to abandoning the proceedings against the said three parties. There is no provision under the Central Excise Act, 1944, which grants power to the Adjudicating Authority to re-adjudicate the SCN on same facts for same period relating to same clearances once again, the said SCN already having been adjudicated upon by passing of Order-in-Original dated 30 March, 2009. In our opinion, the re-adjudication proceedings of the same SCN dated 20 February, 2008 along with addendums and passing of the present Order-in-Original impugned hearin is not saved by order dated 19 August, 2011 of the Hon'ble Supreme Court, so far the Garg Industries and the two individuals, namely, Shri B.M. Garg and Shri Krishna Kumar are concerned. 14. We, further, note that upon adjudication of the SC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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