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TMI Blog2010 (4) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the godown of M/s. Kanta Enterprises were seized and show cause notice dated 13-7-2006 was issued to the respondent and M/s. Kanta Enterprises proposing to confiscate the rubber products and also for imposition of penalties. The said show cause notice was proceeded by another show cause notice dated 12-1-2007 to respondent for demand of duty on the clandestinely removed goods. The respondent approached the Settlement Commission for settling the duty liability which was demanded under show cause notice dated 12-1-2007 and succeeded in their application. The adjudicating authority vide Order-in-Original dated 31-3-2008 adjudicated the show cause notice dated 13-7-2006 and held that the goods which were seized are liable for confiscation, he did so and gave an option to the respondent to redeem the same on payment of redemption fine of Rs. 1 lakh. He imposed penalty under Rule 26 on M/s. Kanta Enterprises. Aggrieved by such an order, M/s. Kanta Rubber Pvt. Ltd., the respondent in this appeal filed an appeal before ld. Commissioner (Appeals). Nothing is on record that M/s. Kanta Enterprises had filed an appeal against the Order-in-Original. Revenue also filed an appeal against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said First Notice, another Show Cause Notice in F. No. DGCE/HYRU/12-03/2006/O.R.No. 02/2006/SCN No. 02.2007, dated 12-1-2007 (hereinafter called the Second Notice) was issued by the Additional Director, Directorate General of Central Excise Intelligence, Hyderabad Regional Unit, Hyderabad seeking to demand from M/s. Kanta Rubber Private Limited, Central Excise duty of Rs. 10,64,042/- (Rupees Ten Lakhs Sixty Four Thousand and Forty Two only) and Education Cess of Rs. 14,856/- (Rupees Fourteen Thousand Eight Hundred and Fifty Six only), totaling to Rs. 10,78,898/- (Rupees Ten Lakhs Seventy Eight Thousand Eight Hundred and Ninety Eight only) for the period from 6-4-2002 to 10-1-2006. The fact of issue of First Notice, which is directly connected with the Second Notice, is taken on record and reference is made to the same in paragraph 3 of the Second Notice. In other words, both the First Notice and Second Notice are dependent on each other and co-terminous. One cannot exist or survive without the other. There is no demand of duty against M/s. Kanta Enterprises in the Second Notice and the duty demand is only against M/s. Kanta Rubber Private Limited. (c) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plemented, unless varied by a higher forum. It is also submitted that as the seized goods are not available, they cannot be confiscated and no penalty can be levied in this regard. The impugned order of the Commissioner (Appeals) setting aside the confiscation and redemption fine is, therefore, correct, proper and legal. (d) In view of the above, it is respectfully submitted that all proceedings in respect of both the First Notice and Second Notice should be treated as closed. The original order of the Additional Commissioner, in so far as it held that there is immunity from penalty to M/s. Kanta Rubber Products Private Limited and Shri Navratan Jain, Director is, therefore, sustainable. (e) The Commissioner (Appeals) has rightly concluded in paragraph 9 of the impugned order that the two show cause notices issued to M/s. Kanta Rubber Private Limited and Kanta Enterprises are inter related as is evident from paragraph 3 of the Second Notice. (f) The Commissioner (Appeals) has also rightly observed in paragraph 9 of the Order that the duty amount mentioned in the Second Notice also includes the duty payable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty liability on the seized goods which were included in the show cause notice, there was no proposition in the said show cause notice for the confiscation of the goods. The proposition in the show cause notice dated 13-7-2006 is for confiscation of the goods which were seized. I find from the order of the Settlement Commission that the Settlement Commission has settled the issue by ordering as under :- "14. Accordingly, the case is finally settled in terms of sub-section (7) of Section 32F of the Central Excise Act, 1944, on the following terms and conditions : (i) The duty amount is settled at Rs. 7,54,225/-. An amount of Rs. 5,22,246 has already been paid by the applicant. Therefore, the applicants are directed to pay the balance duty amount, of Rs. 2,31,979/- within 30 days from the date of receipt of this order. (ii) The applicant shall pay simple interest @ 10% p.a. for the period when the duty became due till the date of its actual payment. Revenue shall calculate the interest payable accordingly and communicate to the applicant within 15 days from the date of receipt of this order and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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