Common notice and identical facts led to cancellation of excise duty demand and penalties after co-noticees succeeded.

Where a demand and penalties arise from a common show cause notice and identical factual and evidentiary foundation, and co-noticees have already succeeded on the same issues, the later appellant's case ordinarily follows that earlier appellate determination unless distinguishing material is shown. Here, the processed fabrics, alleged use of power, and exemption claim had already been examined in the co-noticees' appeals, and no new material was brought to separate the appellant's case. On that basis, the duty demand and consequential penalties were found unsustainable and the appeal was allowed.

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Issues: Whether the demand of central excise duty and consequential penalties could be sustained against the appellant when the co-noticees in the same common adjudication had already succeeded on the same set of facts and evidence.

Analysis: The dispute arose from a common show cause notice and a common order-in-original based on the same investigation and factual matrix. The earlier order passed in the appeals of the co-noticees had already examined the nature of the fabrics processed, the alleged use of power, and the applicability of the exemption claim, and had set aside the duty demand and penalties. No new material was brought on record to distinguish the appellant's case from that decided earlier. In these circumstances, the issue stood covered by the earlier appellate decision, and the same reasoning was applicable to the appellant's appeal as well.

Conclusion: The duty demand and penalties were not sustainable, and the appeal was allowed.

Ratio Decidendi: Where an assessee's case arises from the same common notice and identical factual and evidentiary foundation as a co-noticee's case already decided in appeal, and no distinguishing material is shown, the later appeal should ordinarily follow the earlier appellate determination.

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