TaxTMI 
TaxTMI 
2008 (12) TMI 116
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....on order of adjudication was passed by the learned Adjudicating Authority to deal with the following allegations against the Respondents :- (i) The respondent M/s. Khushi Aromatics having three partners were all related to each other (See: para 19 at page 13 of order in original) and members of Kothari family, were the promoters and major share holders of the Respondent Kothari Products Ltd., engaged in the manufacture of odoriferous substance and mixtures. It had unlawfully availed benefit under Exemption Notification No. 32/99 dated 8-7-99 and claimed refund of duty to the extent not set off against cenvat credit. (ii) The respondent Kothari Products Ltd. was engaged in manufacture of Pan Masala and Pan masala containing tobacco at its manufacturing unit at Jorhat had purchased raw materials from the Respondent M/s. Khushi Aromatics and evaded Central Excise duty resorting to mis-declaration, mis-representation and wilful suppression of facts paying excess duty of excise on the input so purchased at a higher value due to over-valuation of such goods by that Respondent to enable M/s. Kothari Products to avail excess Cenvat credit and the Respondent was not eligible for exemption....
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..../s. Kothari Products Ltd. during the period from 26-12-2002 to 26-2-2005 and availed refund of the excess duty of excise under the exemption Notification No. 32/99-C.E., dated 8-7-1999 to facilitate availment of excess Cenvat Credit by their related unit, whose products were not eligible for the exemption by way of refund under Notification No. 32/99-C.E., dated 8-7-1999 as their product Pan Masala containing tobacco is not a specified item for exemption under the said Notification by resorting to conscious and deliberate suppression and misrepresentation of facts. (vii) The Respondent M/s. Khushi Aromatics, Jorhat (Noticee No. 1) had evaded Central Excise duty amounting to Rs. 4,05,94,887/- (Rupees four crore five lakh ninety-four thousand eight hundred eight-seven) availing wrong refund by fraudulent misuse of exemption Notification No. 32/99-C.E., dated 8-7-1999 and Central Excise duty of Rs. 28,16,640/- (Rupees twenty-eight lakh sixteen thousand six hundred forty) and Rs. 56,333/- (Rupees fifty-six thousand three hundred thirty-three) by under-valuation of excisable goods, in violation of the following Rules:- (1) Rule 6 of Central Excise Rules, 2002 inasmuch as the duty was ....
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....2 to 26-2-2005 is time-barred and extended period of five years is invocable under Section 11A of the Act? (c) Whether Rules 9 and 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 are applicable in determination of the value and duty payable in respect of the goods sold to M/s. Kothari Products Ltd. by M/s. Khushi Aromatic? (d) Whether refund of Rs. 4,05,94,887/- refunded to M/s. Khushi Aromatics under Notification No. 32/99-C.E., dated 8-7-1999 is excess or not? (e) Whether or not there is evasion of duty in the matter of short payment of Central excise duty by way of undervaluation of the goods 'sold' against invoice Nos. 50 and 51 issued to M/s. Kothari Products Ltd. as the noticee is availing exemption under Notification No. 32/99-C.E., dated 8-7-1999? (f) Whether claim under Section 11-D as envisaged in the show cause notice is enforceable or not? (g) Whether the Cenvat credit taken by M/s. Kothari Products Ltd. against the goods sold by M/s. Khushi Aromatics has been availed wrongly by M/s. Kothari Products? (h) Whether penalty is imposable on Shri Mitesh Kothari under Rule 26 of CEX Rules, 2002 for personal involvement and whether h....
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....in appeal in terms of review order passed on 15-2-2008 by Shri H.K. Saran, learned Chief Commissioner of Central Excise of Shillong Zone and Shri Amar Singh, learned Chief Commissioner of Central Excise Ranchi Zone holding that the order of adjudication dated 12-11-07 was neither legal nor proper in terms of the reasons stated in paras 6.1 to 6.8 of review order and raised following questions: (i) Whether the Commissioner's order holding that M/s. Khushi Aromatics and M/s. Kothari products Ltd. are not inter-connected undertakings and there is no mutuality of interest between them, is legally proper and correct in the light of the evidence on record? (ii) Whether the evidence on record justifies the Commissioner's findings that M/s. Khushi Aromatics and M/s. Kothari Products Ltd., are not related within the meaning of Section 4 of Central Excise Act, 1944. (iii) Whether the evidence on record justifies that Rule 9 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 is not applicable for determination of assessable value of the clearance by M/s. Khushi Aromatics to M/s. Kothari Products Ltd. (iv) Whether the Commissioner's order No. 03/COMMR/A....
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....ore, Revenue's Appeals are liable to be dismissed. (6) It has also been held in the above cases that Authorities failed to be appointed by the process known to law lack jurisdiction to exercise powers under the law and this frustrate objects of the statute under which they are expected to exercise powers. 7. Learned counsel Shri Anand appearing for all the Respondents raised aforesaid preliminary objections while moving early hearing application and prayed for dismissal of all the 3 (three) appeals of Revenue. He relied on the aforesaid two decisions of Tribunal and submitted that when there was no Committee of notified Chief Commissioners and the Chief Commissioners were not notified to be so, there was no review order for which Revenue's appeal are not maintainable. He further submitted that the orders passed by Tribunal in aforesaid cases have neither been stayed nor reversed by any higher Court. Therefore, the Respondents are entitled to the benefit of those orders following rule of consistency. 8. Learned DR appearing for Revenue submitted that the Tribunal should not be hyper technical but should look to the merits of the case. Both the Chief Commissioners were appropriate....
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.... Bench while Bhushan's case was decided. It was decision of Kolkata Bench in above cases that Revenue's appeal when suffers from legal infirmity, it has no locus standi. Such a ratio has also been followed consistently. Learned Counsel for Appellant relied on following decisions to submit that per incuriam orders are unsustainable. He further submitted that there should be a decision on mandatory pre-requisite of law before an appeal is lodged before Tribunal as held by Hon'ble High Court of Gujarat in Shree Ganesh Dyeing and Printing's case cited (supra) by a notified committee consisting of statutory authorities and Tribunal has every authority to go into the compliance whether made under Section 35B(2) of the Act:- (1) CCE, Chandigarh v. Markfed Vanaspati & Allied Industries, 2003 (153) E.L.T. 491 (S.C.). (2) CCE, Vadodara v. Rohit Pulp Paper Mills, 1998 (101) E.L.T. 5 (S.C.). (3) L. Chandra Kumar v. Union of India, 1997 (92) E.L.T. 318 (S.C.). (4) Miles India Ltd. v. Asstt. Collector of Customs, 1987 (30) E.L.T. 641 (S.C.). (5) CCE, Chandigarh v. Doaba Cooperative Sugar Mills, 1988 (37) E.L.T. 478 (S.C.) (6) Union of India v. Kirloskar Pneumatic Co., 1996 (84) E.L.T. 401 ....
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....ppointment by Notification by Official Gazette is mandatory [See : Nazir Ahmed v. King Emperor, AIR 1936 PC 253 (II)]. (2) If no valid appointment of an authority is made according to process known to law, all his acts done are ab initio void [See : Income-tax Officer v. M.C. Ponnoose (1970) 75 ITR 174 (SC)]. (3) Appointment affects jurisdiction and improper appointment makes the appointee powerless. (4) Vesting of specific authority is necessity of law [See : Mohtesham Mohd. Ismail v. Spl. Director Enforcement Directorate, 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 433 (S.C.)] and Management Assistant Salt Commissioner v. Secy. Cen. Salt Majdoor Union, 2008 (224) E.L.T. 14 (S.C.)]. (5) Official Gazette is Government Journal containing public notice of appointment of statutory authorities sought to be appointed through Gazette Notification [See : Naffar Chandra Jute Mills Ltd. 2008 (230) E.L.T. 244 (T - Kol Para 30)]. (6) Publication of appointment in Gazette of India is a necessary mode of communication to public [See : Union of India v. Ganesh Das Bhojraj, 2000 (116) E.L.T. 431 (S.C.)]; (7) An authority assumes jurisdiction only when that authority is vested with the sam....
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....ournal containing public Notices and other prescribed matters Legal Glossary (1983 Edition) issued by the Legislative Deptt. of Ministry of Law, Justice and Company Affairs, Govt. of India defines Gazette as "Official Newspaper containing list of Government appointments, legal notices, dispatches etc.". Thus date on which an Official Gazette is made available to the public that brings out the contents thereof to the notice of public. The General Clauses Act being an important piece of legislation makes clear that appointments of the Public Authorities under different statutes, vesting them with power to act on behalf of the Central Government is communicated to the public because public are to be dealt with by that invested power by the notified authority only who has been recognised by law in terms of Gazette Notification. Vesting of power on an authority comes to knowledge of court as well as public through the Official Journal called Gazette. Appointment of Authorities through Gazette being a necessity of law compliance thereof is mandatory and failure to do so is incurable. 18. Mode of communication in the matter of appointment of learned Chief Commissioner being the Gazette a....
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....xpress power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter, Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words [emphasis supplied]. "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A....