TMI Blog2018 (9) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate ORDER Per: Anil Choudhary: This is the second round of litigation. Earlier this matter had come before this Tribunal and this Tribunal vide Final Order No. 54850-53/2016 dated 08.11.2016, in the appeals filed by M/s Shivalik Printers and others being Partners etc., took note of the facts alleged in the show cause notice, that the other concern namely M/s Neha International, M/s Sandeep Trading Company and M/s K. S. Graphics alongwith two other units M/s Vrinda Fine Arts and M/s Shiva Graphics, were so connected with M/s Shivalik Printers, that the turnover of all the six units as it appear to Revenue, can be clubbed to determine the excise duty liability in terms of Notification No. 8/2003-CE dated 01.03.2003. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts? and - Whether the income of these dummy units is required to be clubbed with income of M/s Shivalik Printers for calculation of duty? and - Whether following the principles of natural justice and affording the opportunity to all the units and persons impugned in the original proceedings would be feasible? Further, the ld. Commissioner held as follows: 4.5.7 I have gone through the investigation made by the department and also statements of various persons recorded during the course of investigation. I find that during the course of investigation, it was observed that all these so called dummy units have been dealing their affairs mostly in cash. I find that no evidence has been adduced by the department to effect that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble CESTAT has also given its findings that before clubbing the income of these so called dummy units, each units were required to be afforded the opportunity following the principles of natural justice. That it is presumptively concluded that these units have no existence and apparently do not require any notice. Sub pre-judicial presumptions are against the principle of natural justice. Since, these units have not been issued show cause notice, their incomes cannot be clubbed particularly considering the fact that the above CESTAT judgment has been accepted by the department. 4.7.1 Now, I take up the third issue as to whether at this stage, show cause notices can be issued to the alleged dummy units. 4.7.2 Audi alteram partem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se dummy units is clearly hit by limitation . 3. Aggrieved with the said order of adjudication, Revenue is in appeal on the ground that the adjudicating authority has failed to appreciate the fact that duty in the event of clubbing of several units can only be demanded from the principal unit and not the dummy unit(s). Further, clubbing of clearances of two or more unit(s) can take place only if one unit is principal unit while others are dummy units which had been floated with a view to camouflage clearances of principal unit. Where duty is demanded from all the involved units, it would lead to an inference that revenue has recognized implicitly all the units as independent units. 4. Ld. Advocate for the respondent assessee have sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty demand was raised against both of them. Against the order of this Tribunal, Revenue preferred appeal before the Hon ble Supreme Court reported as 2015 (322) ELT A32 (SC). The appeal of the Revenue was dismissed upholding the finding of this Tribunal. Ld. Advocate further points out that the impugned order is in consonance with the observation of this Tribunal with the earlier Final order dated 08.11.2016. Accordingly, he prays to dismiss the appeal of the Revenue. 5. Having considered the rival contention, we find no merit in this appeal by Revenue. The grounds of appeal are repetition of allegation in the show cause notice. Further, this Tribunal has observed that earlier Order-in-original (first round) dated 09.01.2009 was bad f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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