Custom, Excise & Service Tax Tribunal
Sri Vari Packs vs Cce Salem on 25 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI S.No. Appeal No. Appellant Respondent
1. E/188/2009 Sri Vari Packs CCE Salem
2. E/189/2009 M. Jeevasekaran CCE Salem
3. E/50/2009 CCE Salem Sri Vari Packs Arising out of Order-in-Appeal No.180 to 183/2008-CE (SLM) dt. 18.12.2008 passed by Commissioner of Central Excise (Appeals), Salem Appearance:
Shri M. Saravanan, Consultant For the Assessee Shri K. P. Muralidharan, AC (AR) For the Revenue CORAM :
Honble Ms. Sulekha Beevi C.S. Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Date of hearing / decision : 25.01.2018 FINAL ORDER No. 40215-40217 / 2018 Per B. Ravichandran These three appeals (two by the assessee and one by the Revenue) are against the common impugned order dt. 18.12.2008 of Commissioner (Appeals), Salem.
2 The main assessee-appellant (Sri Vari Packs) are engaged in the manufacture of paper carton boxes. The dispute in the present appeals mainly relates to their eligibility of SSI exemption under Notification No.8/2000-CE dt. 1.3.2000 as amended for the years 2001-02 to 2002-03. The Revenue entertained a view that the assessee-appellant had split up the turnover in the name of another unit M/s.The Coastal Paper Packaging which is held to be fictitious unit, in order to have lesser turnover accounted for the purpose of availing the said SSI exemption. After certain investigations proceedings were initiated resulting in the issue of notice to the main appellant-assessee and three more persons including the second appellant herein for imposition of penalties. The lower authorities confirmed that M/s.The Coastal Paper Packaging is a fictitious firm and the main appellant exceeded the threshold exemption limit and accordingly should pay differential duty. Various penalties were imposed on three other individuals noticees.
3.1 Ld. consultant appearing for the assessee-appellant submitted that the proceedings are vitiated as no notice proceedings with reference to M/s.The Coastal Paper Packaging has been done by the lower authorities. Though the appellants have very strong case on merits to defend regarding the legal status of the main appellant as well as M/s.The Coastal Paper Packaging, the ld. consultant raised the preliminary legal objection that without notice an adverse finding cannot be taken against M/s.The Coastal Paper Packaging. Alternatively, he submitted that the main appellant along with M/s.The Coastal Paper Packaging had substantial export during both the financial years now under consideration and this is evidenced by sales tax Form 'H' which is an admissible evidence as per the law laid down in various decisions. Even on this count, there is no case of differential duty against the appellant-assessee.
3.2 Regarding the appeal by the Revenue, against the remand direction of the Commissioner (Appeals) to examine the export turnover, the ld. counsel submitted that the only reason for the Revenue to file an appeal is that decision of the Tribunal in a similar case in respect of M/s.Vadapalani Press has been contested before the Hon'ble Madras High Court. The Ld. counsel submitted that the appeal of the Revenue has already been dismissed by the High Court as reported in 2015 (320) ELT 238 (Mad.). As such, there is no ground for Revenue in the present appeals.
4. The Ld. A.R reiterated the findings of the lower authorities and submitted that the grounds of Revenue is regarding non-admissibility of submission of the appellant regarding export turnover.
5. We have heard both sides and perused the appeal records. Regarding the appeals by the assessee-appellant, we note that as correctly contested by the ld. consultant that, there is a serious legal infirmity in the proceedings concluded by the lower authorities. Admittedly no notice was issued making allegation about the legal status of M/s.The Coastal Paper Packaging. The lower authorities held the said units as fictitious. Though the appellant strongly contested on merit and established the legal status and independence of M/s.The Coastal Paper Packaging, since no notice was issued to them, the whole proceedings are in violation of principles of natural justice. We note the proceedings without notice to one of the parties and holding the adverse view against such party is not sustainable. In this connection, we refer to decision of Tribunal in the case of CCE Kolkata Vs Diamond Scaffolding Co. 2011 (274) ELT 10 (Cal.) and Poly Resins Vs CCE Chennai - 2003 (161) ELT 113 (Tri.-Chennai). Accordingly, without going further into the merits of the case, we hold that the proceedings are not sustainable.
6. Noting the basis of Revenue's appeal and also legal infirmity in the present case, we find that the appeal by the Revenue is not sustainable. In the result, appeals of appellant-assessee are allowed with consequential relief, if any as per law and appeal of Revenue is dismissed.
(dictated and pronounced in court) (B. Ravichandran) (Sulekha Beevi C.S) Member (Technical) Member (Judicial) gs 6 Appeal Nos.E/188,189,50/2009