TMI Blog2011 (1) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... ains final even if in another case, different view is taken by the court on question of law and, therefore, the respondent no. 3-the Dy. Commissioner, Central Excise Division, Chittorgarh had no jurisdiction to reopen the issue decided in final order while executing the final order - Appeal is dismissed - 1 of 2011 - - - Dated:- 10-1-2011 - Arun Mishra C.J. and Prakash Tatia, J. REPRESENTED BY : Shri Sanjeev Johari, for the Appellant. [Judgment per : Prakash Tatia, J.]. The appellant has preferred this Excise Appeal under Section 35-G of the Central Excise Act, 1944 to challenge the order dated 24-8-2010 (Ex.P/12), 7-10-2004/30-9-2004 (Ex.P/9) and 30-7-2003 (Ex.P/5) and prayed for upholding that the liability determination order dated 5-10-1999 (Ex.P/2) merged into order dated 30-7-2003 (Ex.P/5) passed by the respondent no.3 - the adjudicating authority under Section 11A of the Central Excise Act, 1944 and not challenging the said order dated 5-10-1999 is not fatal and cannot come in the way of the appellant-assessee. 2. Brief facts of the case are that appellant is a company registered under the provisions of the Companies Act, 1956 and controversy pertains to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings initiated vide demand-cum-show cause notice dated 3rd Nov., 2000. The copy of this order dated 30-7-2003 is Ex.P/5. 5. It will be worthwhile to mention here that before above order dated 30-7-2003 was passed to drop the recovery proceedings, the petitioner withdrew that writ petition on 3rd July, 2002 with liberty to challenge the order of the tribunal. The operative part of the order passed by this Court in petitioner s said writ petition no. 3080/1999 is as under : - Learned counsel seeks permission to withdraw the instant writ petition. Hence, the writ petition is dismissed as withdrawn. The petitioner is given liberty to challenge the order of the CEGAT if the necessity so arise. Since the writ petition was pending before this court the appropriate authority will consider this fact favourably to the petitioner while considering the application for condonation of delay in filing the appeal. 6. Admittedly, the appellant did not chose to challenge the said impugned order dated 5-10-1999 before the CEGAT in spite of seeking permission from the Court in appellant s own writ petition. According to the appellant, the order dated 5-10-1999 (Annex.P/2) was based on the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Hon ble Apex Court in SPBL case then the appellate authority as well as the Tribunal erred in reversing the order passed by the adjudicating authority dated 30-7-2003. 10. Learned counsel for the appellant vehemently submitted that in fact, the order dated 5-10-1999 merged into order dated 30-7-2003 and also submitted that in fact, the order dated 30-7-2003 is the original order and, therefore, the appellant was not required to challenge the order dated 5-10-1999 whereby a liability has been created against the appellant. Learned counsel for the appellant was emphatic in saying that the order dated 5-10-1999 merged into the order dated 30-7-2003 and the appellant has specifically sought this relief of declaration that order dated 5-10-1999 merged into order dated 30-7-2003. 11. We considered the submissions of learned counsel for the appellant and perused the record. 12. It is not in dispute that appellant s liability was determined by the order dated 5-10-1999 passed by the Commissioner, Central Excise, Jaipur-II (Ex.P/2) exercising powers under Rule 3 of the Rules of 1998. These Rules are framed under Central Excise Act, 1944. Rules of 1998 have been framed to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5-10-1999 in the proceedings initiated by demand-cum-show cause notice dated 3-11-2000. In fact, there was no basis and reason for taking the plea by the appellant that order dated 5-10-1999 creating liability of the appellant could have merged in any order passed in proceeding initiated by demand-cum-show cause notice dated 3-11-2000 wherein only it has been asked to the appellant to show cause as to why the amount as determined in the light of the order dated 5-10-1999 and where substantial amount of the duty liability has been paid by the appellant to the tune of Rs. 21,91,500/- against the duty liability of Rs. 22,22,000/- per month on the basis of annual production capacity of Rs. 2081.472 lacs. The demand-cum-show cause notice dated 3-11-2000 (Ex.P/3) clearly says that after payment of Rs. 22,20,000/-, the balance amount remained due in appellant is Rs. 1,14,000/- and, therefore, it is sought to be recovered. At the cost of repetition, We may observe that demand-cum-show cause notice in question is neither any notice for re-opening of the case decided vide order dated 5-10-1999 nor it was a original proceeding. In fact, vide notice dated 3-11-2000 (Ex.P/3) only execution pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of the Act of 1994 or the rules made thereunder. Then the Officer within one year from the relevant date, serve notice upon the concerned person and require him to show cause why he should not pay the amount specified in the notice, but at the same time, in the light of the decision of the Hon ble Supreme Court in the case of Kunhaylyammed (supra) what is relevant is the nature of proceeding which determines the issue whether earlier order has merged in subsequent order or not. This has been clearly given out in sub-para no. (iii) of para no. 44 of the judgment and in the facts of the case it is clear that the notice too was issued under Section 11A by the concerned authority to the appellant but said authority sought recovery of the amount not paid by the appellant in pursuance of order dated 5-10-1999 and not demanded more than that. In this proceeding, the appellant could have at the most submitted that he has paid the entire d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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