TMI Blog2019 (6) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice before the expiry of LOP and that has been decided in appeal, by setting aside that, the same issue cannot be revived by another show cause notice even after the extension of LOP period. The department has not renewed the warehousing licence of the appellant after year 2000 and thereafter the demand was required to be made in terms of the notifications No.13/81 within prescribed time, which has not been done by the department. Therefore, the demand is also time bared. The entire goods, which has been procured indigenously or imported is still lying in the appellant s warehouse. The appellant has requested for the disposal of confiscated goods under the provisions of Customs and Central Excise Act and recover the demand penalty against them. But the department has failed to do so - the impugned order is contrary to the provisions of the law, on merits and also on the limitation and is not sustainable. Appeal allowed - decided in favor of appellant. - Customs Appeal No.50893 of 2019 - Final Order No. 50983/2019 - Dated:- 26-6-2019 - Mr. Bijay Kumar, Member (Technical) and Ms. Rachna Gupta, Member (Judicial) Present for the Appellant : Shri N.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Rajanthan High Court against this remand order of the CESTAT, however, had not been successful, and the order of the CESTAT remanding the matter to the original adjudicating authority was upheld by the High Court. 2. The adjudicating authority has not given findings on the substantive issues raised by the appellant in their submission dated 26.11.2018, while passing the impugned order. 3. The appellant also contended that the show cause notice in this matter was issued first time, on 30.03.2000, raising the Customs duty demand along with interest, which was dropped by the order in original No.23/2000 dated 16.08.2000 by the then adjudicating authority and therefore issuing the subsequent show cause notices on the same issue was without any authority of law, and on this ground along the proceedings is required to be quashed, placing reliance on the following decisions: (i) 2005(192) ELT 1197 (Tr-Del) Osaka Alloys Steel Pvt. Ltd. Vs Commissioner CE Jalandhar. (ii) 2014(308) ELT 81 (T-Ahd) Swiss Parenterals Pvt. Ltd. Vs Commissioner of CE ST Ahmadabad (iii) 1944(69) ELT 477(BOM) Metal Extenders Industries Pvt. Ltd. Vs UOI (iv) 2014(306) ELT 231(Del) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the original purchase value. The impugned order is also silent on this issue. 6. It is also submitted that the appellant had imported the capital goods involving customs duty ₹ 1,01,03,020/- without payment of duty at the strength of EPCG/ Advance licence and indigenous capital goods without payment of duty amounting to ₹ 6,18,198/- on CT-3 Certificate issued by the jurisdictional excise officers. It is the submission by the appellant than due to circumstances beyond the control of the appellant could not be start their business and also affect export as per the licence granted to them. In the mean time one of the director of the appellant company also passed away. The appellant got embroiled in litigation with bank and the excise department which launched various proceedings under the different show cause notices. 7. Capital Goods, which were imported or indigenously procured are still lying in the factory and also there is no case of misuse or diversion thereof. The appellant s submission that they do not have any fund to run the factory or to honour the demand confirmed against them by the impugned order was not considered by the adjudicating authority. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho set aside the demand. Thereafter, on the same issue another show cause notice dated 29.10.2001 was issued to the appellant which was decided by the order dated 23.09.2003, wherein the demand, which was dropped earlier by order dated 16.08.2000 was confirmed, however, the goods confiscated was allowed to be redeemed on payment of redemption have been of ₹ 50,00,000/- alongwith the imposition of penalty of ₹ 10,000/- under Section 117 of Customs Act. The appellant preferred appeal against this order, which was set aside vide the Tribunals final order No.279/05-B dated 18.03.2005 with consequential benefit. Similarly, the demand in respect of indigenously procured goods was confirmed by the lower adjudicating authority vide order dated 22.10.2003 under the provisions of Central Excise Act and Rules. The appeal against this order was dismissed by the Commissioner (Appeal), vide order in appeal No. 138/2004 dated 16.04.2004. The appellant preferred appeal against this order of Commissioner (Appeal), before Hon ble CESTAT. The CESTAT vide its order No.583/06-SM(BR) dated 10.04.2006 remanded the matter to the Commissioner (Appeal) for a fresh decision on merits. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the impugned order and remand the matter to the Original Authority for a fresh decision. The Original Authority shall provide adequate opportunity to the appellant to submit their defence with supporting documents before a fresh decision is taken. We note that the facts, as recorded in the impugned order, can be considered and also available for the appellant for filing their defence. 10. In compliance of this order the adjudicating authority has re-confirmed demand vide impugned order dated 21.01.2019. 11. Learned advocate on behalf of appellant submitted that this is the fourth round of litigation before this Hon ble Tribunal against the show cause notice on the issue which has been set aside on a number of occasions earlier. The present show cause notice is thus time-bared as the department has confiscated the imported goods as well as indigenous procured goods in year 2000 itself, even though the LOP was extended by the Development Commissioner, Noida Export Processing Zone till year 2013. Therefore, it was not legally correct to confiscate the goods lying in the bonded warehouse of the appellant. Also, that while confirming the demand depreciation as per the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumed that the show cause notice is issued on 13.08.2012 as has been stated in the order dated 13.11.2013 demand against the appellant would be premature as the LOP has been extended till year 31.03.2013 by the DGFT. Which is also evident the remand order of CESTAT dated 20.09.2017. 14. The Learned adjudicating authority has not considered the previous decisions of the Tribunal, which set aside the order against the appellant. We also find that the repeated show cause notices, on the same issue, have been issued which is held to be not permissible placing reliance on the decision of Tribunal in case of Solitaire Machine Tools Ltd. Vs. Commissioner of Central Excise, 2008 (222) E.L.T. 404 (Tri-Amd) the relevant paragraph of the order is reproduced as under: 5.2 We are in agreement with the submissions of the learned advocate that the clearances effected in pursuance of the permission granted in 1992 cannot be guided by the subsequent restriction imposed in 1995 by DGFT authorities. Further, when the show cause notice has been issued in Jan 96 in respect of the very same clearances, issue of another show cause notice in April 96, including the demand proposed in the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation. (c) The earlier notice for the period, July, 94 to December, 94 dt. 30-1-96 has been ordered to be withdrawn by the competent adjudicating officer, after hearing the Respondents and considering the written reply. While there can be no doubt about the issue of this notice being an administrative act, but the fact that the appropriate authority, after receipt of the written reply and grant of personal hearing, passed an order on 9-4-99 withdrawing the notice, leads one to conclude, that Procedure simulating the Judicial Process was undertaken, therefore, the order dt. 9-4-99 withdrawing the notice has to be considered as quasi judicial decision, an order in adjudication. The order of withdrawal of the notice not being a ministerial act, but being a quasi judicial order would hold good, being not challenged in appeal. In any case, appeal to the Commissioner (Appeals) can be taken up under Section 35 of Central Excise Act, 1944 against any decision or order ministerial or quasi judicial, passed under the Act by a Central Excise Officer lower in rank than the Commissioner (Appeals) unlike Section 35B of the Act where appeals to Tribunal could be made only against an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find substance in the said proposition made relying upon the decision of the Hon ble Calcutta High Court AIR 1961 Cal 195 in the case of Jiban Saha v S.K. Chatterjee wherein it was held that if the second/revised notice issued on identical terms notwithstanding the scope of the first one and taking advantage of the defence already disclosed by the noticee, in first reply thereto and also in the personal hearing, such second notice would be illogical and barred by the principles of analogous to res judicata. We do not therefore find any substance in the grounds made in the present appeal filed by the Revenue. The reasons pleaded and not applying the Tribunal s judgment in the case of M/s. National Industries v. CCE, Nagpur, 1997 (94) E.L.T. 92 as applied by the learned Commissioner (Appeals) do not impress us. 15. We also find that the department has not renewed the warehousing licence of the appellant after year 2000 and thereafter the demand was required to be made in terms of the notifications No.13/81 (Supra) within prescribed time, which has not been done by the department. Therefore, the demand is also time bared. We also take strong objection for issuing repeatative of sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
