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2017 (12) TMI 1280 - AT - Central ExciseJurisdiction - entire 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 The said Order-in-Original having been withdrawn by the Department, in the appeal/proceedings before Hon’ble Supreme Court wherein the said appellant was not even party, the permission obtained for fresh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 - whether the impugned order have been passed validly under jurisdiction and powers vested under the Central Excise Act? Held 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 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in respect of the same subject matter for the same period, since the earlier Order-in-Original dated 30 March, 2009 was withdrawn in the separate proceedings, in which some of the present appellants were not even party.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 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. The impugned Order-in-Original is not sustainable - appeal allowed - decided in favor of appellant.
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