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PREMIER HEAVY ENGINEERING CORPORATION Versus COMMISSIONER OF CENTRAL EXCISE

2016 (5) TMI 512 - GUJARAT HIGH COURT

Validity of Tribunal's order - Expand of scope of the appeal - Appellant submitted that Tribunal committed a grave error in expanding the scope of the appeal. The Department never served copy of the show cause notice to the appellant company and there was no proposal under the show cause notice of any tax or penalty against the appellant, therefore, the Tribunal could not have expanded the scope of the show cause notice by including the appellant company within the sweep of such proceedings. - .....

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s, by supplying a mere copy thereof, the Department cannot initiate proceedings against the appellant. In any case, it was neither the duty nor the authority of the Tribunal to direct so. If, after the Tribunal found that no order adverse to the appellant company could have been passed without a hearing, the Department was inclined to initiate the proceedings against the appellant, it had to take its own decision and issue notice, if even otherwise permissible in law, particularly having regard .....

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lleged dummy. - Decided in favour of appellant - TAX APPEAL NO. 619 of 2006, CIVIL APPLICATION (OJ) NO. 180 of 2006 - Dated:- 2-5-2016 - MR. AKIL KURESHI AND MR. A.Y. KOGJE, JJ. FOR THE APPELLANT : MR PARESH M DAVE, ADVOCATE with MR PARITOSH GUPTA, ADVOCATE FOR THE OPPONENT : MR.VARUN K.PATEL, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Appellant is allowed to correct appeal number in the cause title. 2. This Tax Appeal was admitted for consideration of following substantia .....

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Brief facts are as under:- 3.1 The appellant - M/s.Premier Heavy Engineering Corporation (hereinafter to be referred as the appellant company ) has challenged an order dated 29.12.2004 passed by the Customs Excise and Service Tax Appellate Tribunal ( CESTAT for short), by which the Tribunal directed the excise authorities to serve a copy of show cause notice to the appellant company and further directed that all parties to the proceedings be re-heard by the original authority and thereafter, th .....

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officers of the Excise Department at the site of the appellant company, it was noticed that the unit came into existence in the year 1992 and skeleton machinery was installed at the site. There was commonality of directors between the two companies. On the basis of investigation carried out by the Excise Department, the noticee was called upon to show cause why excise duty of ₹ 4,97,348/- already paid should not be recovered and confirmed under the Central Excise Act and why interest and .....

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ompany and the adjudicating authority had already appropriated the said sum of ₹ 4,97,348/- towards excise duty liability. Against this order, the appellant approached the Tribunal after unsuccessfully filing appeal before the Commissioner (Appeals). The Tribunal by the impugned judgment passed following directions:- 3. In view of the finding we set aside the orders impugned and allow this appeals no.E/527 with direction that M/s Premier Heavy Engineering Corporation should be served with .....

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d the matter also remanded back to the appropriate authority for re-determination if required. 3.5 In short, the Tribunal directed that the copy of the show cause notice to the noticee be supplied also the the appellant company. The Tribunal directed that all parties would be heard afresh by the competent authority regarding issues of duty, penalty and interest liabilities. Once these liabilities are decided, the question of refund to the appellant company would arise. It is this order that the .....

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oceedings. 5. On the other hand, learned Counsel Shri Varun Patel for the Department submitted that the appellant company and the noticee were one and the same entities and the appellant company is dummy of the noticee company. It was therefore not necessary to hear the appellant separately before taking final decision of appropriation of the duty amount. 6. As can be seen from the record, the question relates to the appellant company being dummy of the noticee company. It is not even the case o .....

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