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TMI Blog2018 (8) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... off. - Appeal Nos. E/456/2010 & E/CO/64/2010, E/493/2010 & E/CO/40893/2017, E/494/2010 & E/CO/66/2010, E/495/2010 & E/CO/67/2010 - FINAL ORDER No. 41832-41835/2018 - Dated:- 6-6-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri M. Arjun Raghavendra, DC (AR) For the Appellant Shri S. Durairaj, Advocate For the Respondent ORDER Per Madhu Mohan Damodhar The facts of the case are that M/s. Surya Prakaas Foundry (hereinafter referred to as SPF -1 st respondent), are manufacturers of unmachined castings and were availing SSI Notification No.8/2003-CE. From the investigations carried out by departmental officers, it appeared that there were two other adjoining units by the name and style of Surya Prakass Alloys (hereinafter referred to as SPA 2 nd respondent) and Sree Suryajothi Alloys (hereinafter referred to as SSA 3 rd respondent), and that there was no manufacturing activity taking place or no machinery / furnace in the other two units. Few labour delivery challans were found during the course of visit and were taken over by the officers. A statement was recorded from one Sri M. Kanagarajan, Managing Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the department appeal. Aggrieved, Revenue is before this forum. 3. Today, when the matter came up for hearing, on behalf of the appellant, Ld. A.R. Shri Arjun Raghavendra reiterated the grounds of appeal. He also made oral submissions which can be summarized as under: i) It can be noted from the statements recorded from the landlords of the premises occupied by SPA and SSA that in respect of SPA, the room occupying the space is only 121 sq. ft which could not have been able to store the raw material, machinery and also perform the manufacturing activity; in respect of SSA, the landlord has stated that as per the agreement, space was let out for business activities. ii) With respect to observation of the Commissioner (Appeals) that no flow back was established, it is submitted that in a situation where all finished goods are cleared from one single manufacturer flow back of funds need not be established. Further, there are sufficient other corroborative evidence has been made out by the department to prove that SPA and SSA did not have any facility to manufacture castings and that they were only dummy units of SPF. iii) Mr. Kanagarajan (4 th respondent) is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Mumbai) and CCE Vs Mahavir Group of Companies - 2014 (313) ELT 427 (Tri.-Mumbai. Placing reliance on these decisions, ld. counsel contends that Commissioner (Appeals) could not have added or implicated the respondents to the main appeal when there was no appeal filed against the other three respondents in the E.A-2 filed by the department. So also, when an allegation has been made about the unit being dummy unit of another unit, the appeal should have been filed against all the units whose clearances were sought to be clubbed and not just one unit. Ld. Advocate submits that various admissions made by Shri M. Kanagarajan in his initial statement dt. 08.02.2008 were contradicted and denied in his second statement dt. 18.06.2008. He pointed out that the second statement was recorded by the very same officer of the department who recorded the first one, hence this would have the effect of totally retracting any admission that may have been made in the first statement. The grounds of appeal in paras H, K, L M have brought up contentions which should have been raised at the stage of SCN by alleging common funding, labour charge transactions and so on. Ld. Advocate placed rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not filed any appeal against the intended respondents. Moreover, they have filed the main appeal against the main appellant, i.e., M/s. Chokhani Silk Mills Pvt. Ltd., in April, 2008 and they have made this application in November, 2010. The case laws relied upon by the ld. DR are not relevant to the facts of the case as in those cases, a composite appeal was filed against all the respondents, but in this case no appeal has been filed against the intended respondents, which are intended to be impleaded as respondents. Moreover, the case laws cited by the ld. Advocate is applicable to facts of this applicable as is in the case of L.P. Shenoy (supra), wherein this Tribunal has considered the issue and observed that on later stage, the change of cause title is not permissible. 6.2 We further find that the Chennai Bench of the Tribunal in the case of CCE Chennai Vs Arihant Micro Computers Pvt. Ltd. 2006 (204) ELT 350 (Tri.-Chennai) which decision has been affirmed by the High Court of Madras as reported in 2009 (237) ELT 663 (Mad.). The primary objection of the respondent on this score will therefore succeed. 6.3 The other technical objections raised by the respondent is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Tribunal, it appears that the appellant does not dispute the validity of the order of the Tribunal on the grounds decided by the Commissioner, but on grounds, which were not subject matter of the show cause notice. In the show cause notice, the assessee was not called upon to state as to whether the services of Consulting Engineers and Banking and other Financial Services are input services of the respondent or as to whether the capital goods were used for providing output services provided by the respondent viz. Port Services , etc. Evidently therefore, in the present appeal, the appellant seeks to challenge the impugned order passed by the Tribunal on grounds which were never subject matter of the show cause notice. Under the circumstances, in the light of the settled legal position as emerging from the above referred decisions of the Supreme Court, that the show cause notice is the foundation of the demand under the Central Excise Act and that the order-in-original and the subsequent orders passed by the appellate authorities under the statute would be confined to the show cause notice, the question of examining the validity of the impugned order on ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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