TMI Blog2018 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... unwarranted. Appeal allowed in part. - E/677/2002 - A/31382/2018 - Dated:- 22-10-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri P. Rama Krishna Shri A.V.A. Siva Karthikeya, Advocates for the Appellant. Smt. B.V. Siva Naga Kumari, Commissioner/AR for the Respondent. ORDER [Order per: M.V. Ravindran] 1. This appeal is directed against the Order-in-Appeal No. 65/2001-HYDIII/ ADJN dated 28.03.2002. 2. The relevant facts that arise for consideration in this appeal are reproduced from Final Order No.A/30743/2017 dated 12.06.2017 One M/s Koratla Textiles India Ltd. (hereinafter referred to as KTL) was a 100% EOU having customs private bonded warehouse license for manufacture and export of terry towels. As permitted by the Government of India, KTL imported and warehoused plant and machinery without payment of customs duty by availing benefit of exemption Notification No.13/81-Cus dt.09.02.1981 and has also procured indigenous material without payment of Central Excise duty. The export performance of KTL was reviewed and as they did not fulfil the export obligation and there was a short-fall, show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined against the loanee, it shall, out of the sale proceeds, pay the same. 3. The matter came up for disposal before the Tribunal on 12.06.2017. On that day, appellant were unrepresented. Since, the matter was of 2002, the appeal was taken up for disposal on merits and by Final Order No. A/30743/2017 dated 12.06.2017, the bench confirmed the order of the adjudicating authority as to discharge of tax liability by the appellant and set aside the penalty. Aggrieved by such an order, appellant preferred an appeal before the Hon ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Central Excise appeal No.247/17. By a judgment on the said appeal, their Lordships set aside the Final Order No. A/30743/2017 dated 12.06.2017 and directed the Tribunal to adjudicate the matter afresh considering all the grounds of appeal. 4. When the matter was called out, learned counsel Shri P. Rama Krishna and Shri A.V.A. Siva Karthikeya appeared for the appellant. Learned counsel took us through the entire issue and submitted that as per Sec. 29 read with Sec.46 B of SFC Act, the rights of the Financial Corporation in case of default are first to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay the duty liability that arose on KTL as they had given an undertaking before the Hon ble High Court of AP. Hence, the said order is already set aside by the Hon ble High Court with direction to the bench to reconsider the issue afresh. 8. The appellant herein was issued a show cause notice for confiscation of machineries which were seized by the departmental officers and also for impositions of penalties. The adjudicating authority in the impugned order has not ordered for the confiscation of the machinery but imposed penalty of ₹ 3,50,000/- on the appellant. Appellant was also directed to pay the amount of duties of Customs and Central Excise out of sale proceeds they got from auction sale of the assets of KTL. As against such findings, the appellant herein has taken the following grounds of appeal. (1) The show cause notice dated 12.04.2000 issued by the Commissioner of Customs and Central Excise the impugned order dt.28.03.2002 in OR.65/2001-HYD-III/ADJN, passed by the first respondent herein, it is submitted, is misconceived. Admittedly, the show cause notice dt.12.4.2000 was issued during the pendency of the Writ Petition No.6233/2001 filed by M/s Vija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the decision of the Andhra Pradesh High Court. (4) The show cause notice dt.12.4.2000 the impugned order dt.28.3.2002 in OR.65/2001-HYD-III/ADJN, passed by the first respondent herein also purports to claim that the show cause notice dt.12.4.2000 is issued purporting to be an adjudication of the claim. It is submitted that it is a fundamental rule of law that no person can be a judge of his own case unless the said person approaches a court of law or seek adjudication in accordance with law. In this view of the matter also, the show cause notice dt.12.4.2000 the impugned order dt.28.3.2002 in OR.65/2001-HYD-III/ADJN, passed by the first respondent herein is clearly illegal and wholly untenable. It is further submitted that the Department is left with no other alternative but to seek recovery of the amount due to it from M/s KTL after due determination of the amount due and payable to the Department in accordance with Section 142 of the Customs Act, 1962. The Department therefore, cannot seek to claim any transgression of law by the A.P. State Financial Corporation, especially in the teeth of the Bond executed by M/s KTL having lapsed. (5) The show cause notice dt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability having regard to Section 29 (4) and Section 46(B) of the State Financial Corporation Act, 1951. 9. It can be seen from the above reproduced grounds of appeal that the appellant herein has not contested the confirmation of the demand of the duties of Customs and Excise before the Tribunal. It can be seen that the contest is basically to strike off the liability of paying the customs duty and Central Excise duty for which an undertaking was given before the higher courts. In our view, the appellant herein is required to discharge the duty liability of customs and central excise as Apex Court in an appeal filed by the revenue against the judgment of Hon ble High Court of AP in writ petition No. 6233/2001 (filed by auction purchaser of assets from appellant) clearly directed that the duty liability shall be paid. We reproduce the portion of the order of the Apex Court as reported at [2016 (331) ELT 191] Civil Appeal No. 8191 of 2003 : After hearing the matter for sometime, we are clear in our mind that the case is squarely covered by the judgment of this Court in Rana Girders Limited v. Union of India and Others [(2013) 10 SCC 746 = 2013 (295) E.L.T. 12 (S.C.)]. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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