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TMI Blog2025 (5) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... No. E/1725/2012. Similarly, vide Appeal No. E/1726/2012, Mr. M. Lakshmikar Reddy, Managing Director of the appellant company is in appeal against the same OIO, whereby penalty was imposed under Rule 209A of Central Excise Rules, 1944. 2. The issue, in brief, is that the Department, based on investigation, felt that the appellants have floated certain dummy companies and were availing Small Scale Industry (SSI) benefit under Notification No. 175/1986- CE dt.01.03.1986 in respect of clearances made by the said 8 companies. The period of dispute is from October, 1989 to June, 1994. 3. On the first round of adjudication, the Adjudicating Authority adjudicated six SCNs covering the appellant and 8 others for different period, vide OIO No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was based on Revenue appeal as well, since the Department had only appealed against the order of the Adjudicating Authority to the extent of dropping of demand against appellant alone and not against other co-noticees and therefore, the Adjudicating Authority was not at liberty to decide the matter in respect of remaining 8 appellants also. Whereas, the Adjudicating Authority has clearly relied on the evidence in respect of those 8 companies also while upholding the demand against the appellant and has also suo moto imposed penalty on them apart from taking a stand that the demand of duty is unilaterally applicable only to the appellant and not to those 8 companies. Further, he submits that the Adjudicating Authority has not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the role of 8 companies also and the entire matter arising out of the original adjudication was remanded back to the Adjudicating Authority for redetermination. Merely because the name of only the present appellant is mentioned in the appeal memorandum, it cannot be taken as if appeal has not been filed in respect of remaining companies involved in the said adjudication order. Insofar as the issue of not complying with the observation of the Tribunal as regards financial assistance, etc., being not relevant factor for deciding the issue of clubbing of clearances, he submits that from the order, it is apparent from the impugned order that it is not the only factor taken into consideration by the Adjudicating Authority but he has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 8 other co-noticees is not based on correct application of appeal memorandum and grounds of appeal as well as Order of the Tribunal. We have perused the order of the Tribunal and we find that the Tribunal has considered the entire gamut of case and thereafter, remanded the appeal filed by the department as well as appeal filed by the appellant themselves. Therefore, it would not be correct to say that the Adjudicating Authority was debarred from proceeding with the matter in relation to the 8 co-noticees also. This issue has been explained by the Adjudicating Authority at Para 1.3 of the impugned order, which is reproduced below. "1.3 The assesses contention that there is a bar on denovo adjudication with regard to clubbing of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, it is obvious that the Adjudicating Authority, on the grounds that they did not participate despite notice of hearing, took into consideration the evidence on record and proceeded to decide the matter ex parte qua the co-noticees, which ultimately resulted in demand of duty from the appellant as well as imposition of penalty on appellant and other co-noticees including the Managing Director. We have also observed that while coming to the issue of clubbing, he has gone through various factors including financial involvement and holistically coming to the conclusion that these 8 firms are dummy firms and therefore, clubbing of clearances shown to have been cleared by them was justified. Therefore, we do not find any force in the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments on both sides, we feel that the matter needs to be remanded back to the Adjudicating Authority, who shall now give fresh notice of hearing to appellant as well as all the co-noticees as covered in the original SCNs and original Adjudication Order. Thereafter, the appellant as well as co-noticees shall participate and give the evidence in their support, which will be taken into consideration by the Adjudicating Authority. If they require cross-examination again, the same may also be allowed or in the event of that being not possible this being an old case, record of the cross-examination already on record in relation to first round of proceeding shall also be considered by the Adjudicating Authority while deciding the matter. 13. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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