2009 (11) TMI 376 - AT - Central Excise

Tribunal sets aside order, remands matter for reconsideration, directs Commissioner to decide appeal within deadline

PREMIER PLASTICS Versus COMMISSIONER OF C. EX., KANPUR

The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for reconsideration. The Commissioner (Appeals) was ... Penalty- Notification No. 1/93-C.E., dated 28-2-93- The adjudicating authority namely Joint Commissioner, Kanpur by the orders dated 8-9-2000 had confirmed the demand of Rs. 4,20,958/- and had imposed penalty of equal amount while refusing benefit of Notification No. 1/93-C.E., dated 28-2-93. Held that- Different firms will be treated as different manufacturers for the purpose of exemption limit. But it a firm consisting of certain partners say A, B & C, has got more than one factory, all these factories should of course be combined. Limited companies whether public or private are separate entities distinct from the shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. If there are two firms with only some of the partners in common, each firm is entitled to separate exemption limit and hence the question of distributing the exemption may not arise. If one firm or individual owns several factories he or it gets exemption only in respect of one individual owns several factories, he or it gets exemption only in respect of one lot and the manufacturer being only one entity there will be no question of distributing the exemption. The matter is remanded to the Commissioner(Appeals) to decide the appeal in accordance with provisions of law taking into consideration Issues Involved:1. Clubbing of the value of clearances of different firms.2. Applicability of Section 11AC for penalty imposition.3. Validity of the non-speaking order by the Commissioner (Appeals).4. Consideration of relevant facts and legal principles by the Commissioner (Appeals).Detailed Analysis:Issue 1: Clubbing of the Value of Clearances of Different FirmsThe primary issue relates to the clubbing of the value of clearances of M/s. Royal Polymers, Agra, and M/s. Premier Plastics, Agra, for the purpose of exemption and duty liability. The Commissioner (Appeals) concluded that since Shri Sudhir Gupta was the proprietor of both units, the value of clearances should be clubbed. This decision was upheld by the adjudicating authority, confirming the duty and imposing a penalty.Issue 2: Applicability of Section 11AC for Penalty ImpositionThe appellant argued that Section 11AC, which deals with penalties for suppression of facts, cannot be invoked as it is not applicable prior to 28-9-96. The Commissioner (Appeals) dismissed this argument, stating that the case involved suppression of facts, thereby justifying the penalty under Section 11AC.Issue 3: Validity of the Non-Speaking Order by the Commissioner (Appeals)The impugned order by the Commissioner (Appeals) was criticized for being a non-speaking order. It merely summarized the findings of the adjudicating authority without providing detailed reasons or addressing the points raised by the appellants. The Tribunal emphasized that an appellate authority must record reasons for its decisions to allow for effective further appeals.Issue 4: Consideration of Relevant Facts and Legal Principles by the Commissioner (Appeals)The Tribunal noted that the Commissioner (Appeals) failed to consider all relevant facts and legal principles, including the rival contentions and applicable circulars. The order lacked a formulation of points for determination, analysis of materials on record, and logical conclusions supported by reasons. The Tribunal cited the Supreme Court's decision in Tata Engineering & Locomotive Co. Ltd. v. Collector of Excise, Pune, which mandates that judgments must provide reasons for conclusions.Conclusion:The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for reconsideration. The Commissioner (Appeals) was directed to decide the appeal in accordance with the law, taking into account the Supreme Court's decision in Supreme Washers (P) Ltd. v. CCE, Pune, and the relevant circulars. The Commissioner (Appeals) must dispose of the matter expeditiously, and in any case, before 31-3-2010.