TaxTMI 
TaxTMI 
2011 (9) TMI 118
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....efore the Tribunal were preferred against a common order dated 24.09.2001, passed by the Commissioner of Central Excise (Appeals) [hereinafter referred to as 'Commissioner (Appeals)']. The Commissioner (Appeals) by order dated 24.09.2000 disposed of by a common order two separate appeals against two (2) separate orders passed by the adjudicating authority (i.e., the Additional Commissioner) in order-in-original numbers 86/2000 and 87/2000. Both orders were passed by the adjudicating authority on the same date i.e., 17.11.2000. 3. In order to decide the captioned appeal the following brief facts are required to be noticed. Information was received by the revenue that KRC was manufacturing chargeable accumulators falling under Central Excise Tariff Heading No. 8507, which was being evidently cleared without obtaining central excise registration. Consequently, the Anti-Evasion Branch of the Central Excise Commissionerate conducted a search on the premises of the KRC located at B-103, Naraina Industrial Area, Phase-I, New Delhi. Search was also carried out simultaneously at the office premises, as also, the residential premises of the partner of KRC, Avtar Singh. During the search i....
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.... Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 2) 3 121/2001 M/s Kandhari Separator Industries, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 3) 4 122/2001 Shri Avtar Singh, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 4) 6. The aforementioned appeals were disposed of by a common order by the Commissioner (Appeals) dated 24.09.2001. By this order the Commissioner (Appeals) concluded as follows: "6.7 Admittedly, the show cause should have been served on M/s Kandhari Radio Corporation, demanding duty from them under Section 11A, particularly in the circumstances when the showcause notice for seizure was given to them. The others should have been only notices for penal action under Rule 209A as the brand name belongs to M/s KRC. By some strange coincidence, KRC were not even made noticees whereas they should have been so in terms of Rule 9 and Rule 49 which bind them for payment of duty on all goods leaving their factory premises. However, with Shri Avtar Singh being a noticee in both the notices, the damage has be....
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....datory penalty under Section 11AC, the amount of duty not paid for the period 1996 to 1998 is the main consideration.) 6.10 Shri Avtar Singh in any case is concerned as dealing in the goods on which the duty was payable but was not paid. Since he is a partner not separate from the partnership firm, no separate penalty under Rule 209A is warranted against him. 6.11 It has been brought out that a pre-deposit of Rs 50,000/- has been made in the case by Shri Avtar Singh on behalf of M/s Kandhari Radio Corporation. It is directed that the above amount shall be adjusted against the total duty liability as re-determined here-in-before." 7. As noticed right at the beginning of our judgment, five appeals were preferred, one by the revenue and four others by the entities referred to above, i.e., Hi-Tech, Jeet, KRC and KSI. The Tribunal by the impugned order has allowed the appeal of Hi-Tech, Jeet, KRC and KSI, while the revenue's appeal has been dismissed. 8. In support of the captioned appeal, we have heard Mr Mukesh Anand for the revenue, while on behalf of respondents Mr Navin Mullick advanced arguments. Mr Anand has argued that the Tribunal's observation that since no show c....
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....nt observations in this regard are contained in paragraph 10 at page 245 of the judgment. For the sake of convenience the same are extracted hereinbelow: "....10. It is an admitted fact that a show cause notice as required in law has not been issued by the revenue. The first contention of the revenue in this regard is that since the necessary information required to be given in the show cause notice was made available to the appellants in the form of various letters and orders, issuance of such demand notice in a specified manner is not required in law. We do think that we cannot accede to this argument of the learned counsel for the revenue. Herein we may also notice that the learned Technical Member of the tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show cause notices by the appellate authority are inadequate to be treated as show cause notices contemplated under Rule 10 of the Rules or Section 11A of the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advice or deemed notice issued prior to the finalisation of the clas....