TMI Blog2003 (8) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no infrastructure available in the premises of M/s. Glolite for manufacture of Diesel Generator (DG) Sets. (ii) that M/s. Glolite was floated to wrongly avail the exemption under Notification No. 175/86 on the goods manufactured by M/s. DPK. Therefore, a show cause notice dated 22-11-91 was issued to the assessee and to M/s. Glolite invoking - (i) Provisions of Section 11A(1) by clubbing of clearances of M/s. DPK and M/s. Glolite for the years 1989-90 to 1991-92 (upto May) for determining the benefits under Notification 175/86. (ii) Disallowing the Modvat credit amounting to Rs. 17,16,577.37 p being the credit wrongly taken and availed by M/s. Glolite and (iii) Confiscation of 8 Nos. of D.G. Sets under Seizure belonging to M/s. DPK, demanding the differential Central Excise duty amounting to Rs. 29,53,020.48 from M/s. DPK. (iv) proposing for imposition of penalty on M/s. DPK and M/s. Glolite. (b) Collector, Bangalore, vide his order No. 99/92, dated 24-7-92, confirmed the proposals for demands of duty as made in the show cause notice and imposed a penalty of Rs. 5,00,000/- on M/s. DPK and Rs. 50,000/- on M/s. Gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in the withdrawal of reference application filed by department under Rule 35Q(1) of Central Excise Rules, 1944, after concluding that the matter is of simple nature and the delay in disposal may be unwarranted. The remand of the case by CEGAT was purely on question of equity principle, i.e. natural justice and no mandate was expressly or impliedly given by the CEGAT to Commissioner to sit over the judgment on merits of the case decided by a different Commissioner equivalent in authority and judicial powers. (ii) The learned Commissioner appear to have erred in relying on the cross-examination statement dated 17-4-95 of Smt. Narmada Kumari, which was after a delay of (4) years and mostly a complete retraction of her statement dated 30-5-91. The witness Narmada Kumari was one of the witnesses and her retracted statements would have not made any material change in the position of the case, as substantial evidence was available with the department and the then learned Commissioner had properly evaluated and gave a proper finding. (iii) While adjudicating the case, de novo, the learned Commissioner had not evaluated the corroborative evidence available in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at M/s. Glolite was de-registered by the Directorate of Industries and Commerce on 14-11-91 based on the Assistant Collector s letter dated 12-8-91 would establish the fact that M/s. Glolite was not in possession of the plant and machinery at the time of offence. The registration was restored on 19-4-93 after M/s. Glolite have installed machineries and equipment required for fabrication and assembling of D.G. Set. Thus SSI registration issued by the Directorate, permission given by the Commissioner to M/s. Glolite to transfer unutilised credit on 15-7-93, and M/s. Glolite taking the 3 Nos. of seized D.G. Sets would not alter the position of M/s. Glolite at the time of offence but would indicate only an afterthought of the assessee. 3. After hearing both sides it is found : (a) Ground No. (i) as taken by Revenue herein before us to re-consider the remand Order No. 94-R/96, dated 8-4-96 in a particular fashion cannot be now taken, since the reference application plea on very similar grounds as herein, also stands dismissed as withdrawn; Adjudication by this bench now, on this ground, if taken, would, amount to this Bench sitting in appeal on the Order No. 94-R/96, dated 8-4-96 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect - ...The officers also noticed on 9-8-91 at no. 76, J.C. Road which was the factory premises of M/s. Glolite Diesels that there were three workers attending to their work. The officers also verified the stock of raw materials on 9-8-91 and found shortage of two Nos. of Alternators and two nos. of I.C. Engines. M/s. Glolite Diesels have also produced balance sheets for 1990-91 onwards upto 1993-94 which shows the purchase of raw materials and sale of DG sets. From the above evidences, it can be seen that M/s. Glolite Diesels have manufactured DG sets with their own raw-material, labour and machinery. The two units were self-contained in the matter of plant and machinery and labour.......... (iii) On Managerial Control by the Chief of M/s. DPK in the connected movement of Raw-material/components. This aspect is found to be evaluated in Paras 51, 52 and 53 of the order - ........The units had separate Income Tax registration, Sales tax registration, registration as a small scale unit and even Central Excise licence. Merely because Mr. Sampathraman assisted his niece in the setting up of the unit, the ownership of the unit M/s. Glolite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, which could be or was undertaken on any other date in those premises. This ground is therefore required to be rejected. (e) As regards the ground No. v , the adjudicator has come to a finding, as regards the Registration, de-registration and restored registration of M/s. Glolite, in Para 55 of the order and considered the fact that Collector of Central Excise has permitted M/s. Glolite to transfer large amounts of credit to the other (new) unit induces us to reject this ground. Nothing amiss is found by us in this finding. (f) The ground No. (vi), in view of the totality of the findings as arrived by the Commissioner is required to be dismissed. 4. Since no valid grounds are found to exist in this appeal, we would dismiss the appeal of Revenue on the grounds that no valid point on sustainable grounds, has been made, for decision by the Tribunal. The Advocate for respondents had stressed in his address, the infirmity in this appeal inasmuch as, no appeal has been filed against M/s. Glolite. The dropping of proceedings as regards the eligibility of Modvat credit to Glolite, the imposition of penalty under Rule 173Q(1), which indicates that M/s. Glolite has been considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) is barred by law to hear this case since he filed an appeal before CEGAT is also not acceptable and tenable since the appeal is filed as per authorisation issued by the Board against order passed by another Commissioner. This is also not relevant since the present appeal is not taken up for decision on merit in view of the findings/observations in the preceding para. Hence in my considered view it would be appropriate to remand the case to the Assistant Commissioner for de novo examination and decision on merit and for issuing a self-contained speaking order with justified grounds and reasons and examining the grounds put forth also in the departmental appeal. Accordingly, the subject order-in-original C. No./ V/85/3/78/92B.8, dt. 14-2-96 passed by Assistant Commissioner Central Excise II Division, Bangalore is set aside and the case is remanded to Assistant Commissioner for de novo examination and decision keeping in view of directions and observations made in the foregoing and after allowing an opportunity of personal hearing to the respondents. Departmental appeal bearing No. 171/97 BD is disposed off accordingly. 7. Since, Glolite is being considered as a manufactu ..... 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