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2019 (10) TMI 95 - AT - Central ExciseSSI Exemption - clubbing of clearances - independent units or not - adjudicating authority has dropped the demand holding that all the three units are independent in respect of manufacture and clearance of the goods, therefore, they should not be clubbed - time limitation - Cum-duty benefit - HELD THAT:- The Revenue had filed appeals against all the respondents which further get reinforced on the basis that even though the appellants have raised specific ground for restoration of appeal that the appeals were not filed against M/s Kinitronics and M/s Jolly Enterprises but the same was dismissed, therefore, the issue that the Revenue’s appeal was against all the noticees attained finality. The appellants have not challenged either the remand order or the Miscellaneous Order by which the application for restoration of appeal was dismissed. In this position, the appellant has no locus standi to dispute or to raise the issue that the Revenue’s appeal was only against one party i.e. M/s Jolly Electrical Industries. We therefore, hold that the Revenue’s appeal was filed against all the noticees before this Tribunal; therefore, the issue related to all the noticees were open before the adjudicating authority in de novo adjudication. The appellants have strongly argued that the present adjudicating authority has not considered the findings of fact narrated by the predecessor Commissioner in the first Adjudication Order dated 06.10.1995. In this regard, we find that the first adjudication order was set aside in the Revenue appeal, therefore, the present adjudicating authority is not judicially required to look into the said order as the same was not in existent. Once, the earlier adjudication order was set aside the entire case has gone back to the stage of SCN and thereafter since the entire matter was kept open the present adjudicating authority was free to take independent view on the overall case without getting influenced by the first order and finding of the predecessor Commissioner, therefore, the submission of the Ld. Counsel on this count is fatal and cannot be accepted. The dropping of modvat demand has no impact as far as clandestine removal of goods manufactured and cleared by M/s Jolly Electrical Industries in the guise of manufacture and clearances of M/s Kinitronics and M/s Jolly Enterprises, therefore, merely because the case proceedings of modvat credit has been dropped against M/s Kinitronics and M/s Jolly Enterprises it will not affect the case of clandestine removal against M/s Jolly Electrical Industries, therefore, this argument is of no help to the appellant. Time limitation - HELD THAT:- M/s Jolly Electrical Industries were indulged into clandestine removal of excisable goods to intention to evade duty in the guise of manufacture and clearance of goods from M/s Kinitronics and M/s Jolly Enterprises, there is a clear fraud, suppression of fact, misstatement, collusion with intention with evade duty, therefore, as per the facts of the present case it is a fit case to invoke the extended period, therefore, the demand for extended period is clearly sustainable. Benefit of cum-duty price - HELD THAT:- The appellant is entitled for the cum duty benefit. Accordingly, the demand of duty and corresponding penalty needs to be recomputed by extending the benefit of cum duty price. The appeals are dismissed except for the re-quantification of the duty by extending the cum duty price - appeal disposed off.
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