TaxTMI 
TaxTMI 
2017 (3) TMI 782
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....proper party in the adjudication of the show cause notice which was issued to Respondent No.1 and therefore whether the Tribunal was right in interfering with the original order dated 29th January 2004 passed by the Commissioner (Adjudication) and in allowing the appeals preferred therefrom?" 3. Upon hearing both sides, we do not think that the question, as framed, requires any answer for it did not arise in the facts and circumstances peculiar to this case. 4. The Revenue brought this appeal thinking that the Tribunal will proceed hereafter and in all matters that a show cause notice addressed by it to a sole proprietor does not meet the requirement of law. A notice and independently be addressed to the sole proprietary concern. Addressi....
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.... cash, the goods were manufactured by M/s. Sapna Engineering and were cleared without payment of duty under documents of M/s. Neha Refrigeration and two other fictitious companies. 7. The show cause notice, copy of which is at page 50 of the paperbook, is addressed to M/s. Sapna Engineering, Mr. Subhash Chandra Sharma, one Mr. Manoj Sharma and respondent No.2 Mr. Shitala Prasad Sharma, Manager of M/s. Sapna Engineering. 8. The allegations are that, the central excise duty in respect of goods manufactured and then cleared under the invoices of M/s. Neha Refrigeration, without payment of duty, ought to be recovered with interest and penalty. The penalty that was imposed on respondent No.2, natural person Shitala Prasad Sharma, was for viola....
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....t tenable in law because M/s. Neha Refrigeration was not a party to the proceedings. 11. The Tribunal, after hearing both sides, came to the following two conclusions: "(i) The Show Cause Notice issued to the Appellants M/S. SAPNA ENGINEERING, demanding duty in respect of the goods cleared under the invoices of M/S. NEHA REFRI-alleging that it was floated by the appellants and it existed only on paper as it did not have any factory or manufacturing facility for manufacture of condensers or evaporator coils or other parts of Air Conditioning and refrigerating appliances. That the goods on which duty had been demanded were cleared in the documents of M/S. NEHA REFRIGERATION. However, No Show Cause Notice has been issued to M/S. NEHA REFRIG....
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....unal that the Revenue feels that the premise on which the Tribunal proceeded is erroneous in law. 13. After hearing Ms Cardozo at great length, we are unable to agree with her. The Tribunal did not proceed on the line suggested by the Revenue to this Court at the stage of admission of this appeal. The Tribunal did not proceed on the footing that a sole proprietary concern does require a notice to be addressed not only to the concern but also to the proprietor and the notice being addressed to the proprietor alone will not suffice. The Tribunal did not proceed on the footing that the sole proprietary concern has an existence independent of the sole proprietor. This is a complete misreading of the Tribunal's factual findings. 14. The Tr....
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.... that the allegations in the show cause notice could not be substantiated against M/s. Sapna Engineering as well. The finding further goes that there is independent evidence supporting the contention of M/s. Sapna Engineering that defective coils were repaired by M/s. Neha Refrigeration and duly confirmed by all employees of M/s. Voltas Limited. M/s. Voltas Limited have been completely exonerated. It is in these circumstances that the Commissioner's Order was set aside. Both the appeals were allowed. Thus, these are findings not just on any legal issues but on merits. The appreciation and appraisal of the documentary and oral evidence by the Commissioner was faulted by the Tribunal. Its detail finding would indicate that show cause noti....