COMMISSIONER OF CENTRAL EXCISE, VAPI Vs. TRINITY INDUSTRIES

JUDGEMENT

(1.) THERE are three cases on subject issue where the department has filed appeal against the Ordesr -In -Original of the lower adjudicating authority wherein he has dropped the demand. Since all the three appeals are on an identical issue, we propose to take up all the three cases together, though in respect of other two cases the cross objections are yet to be filed and PH is to be completed. The status of each case is given in the table given for below :

(2.) IN all these cases, the respondent assembled the imported Kits and it is alleged that they have pasted easily removable stickers showing the local brand to conceal the original brand name present on the goods. Similarly the original outside Cartons with full details of original markings alongwith the goods were kept inside a thin corrugated box. Show cause notices were issued proposing to deny the benefit of SSI exemption on the ground that the goods were affixed with brand name like SONY etc. which do not belong to them. The lower adjudicating authority has dropped the case relying upon the Order of the Additional Commissioner in File No. V(Ch. 85)15 -3/OA/98 dated 31 -7 -2003 vide OIO No. 2/Adj/OA/98 -DC/2000 dated 15 -7 -2000 on an identical issue. The appeal memorandum only mentions that the Assistant Commissioner has merely followed the order of Additional Commissioner and has not applied his mind independently.

(3.) THE learned DR on behalf of Revenue submits that just because the department has not filed appeal against the order of the Additional Commissioner on the basis of which the lower authorities have decided against the Revenue, the departments appeal cannot be rejected. He relies on the decision of the Honble Supreme Court in the case of Shri C.K. Gangadharan v. Commissioner of Income Tax, Cochin reported in 2008 (228) E.L.T. 497 (S.C.) = 2009 (16) S.T.R. 659 (S.C.) in support of his contention that non -filing of an appeal on an earlier occasion does not and cannot preclude Revenue from filing of appeal thereafter against another order. He submits that since the Commissioner (Appeals) has not passed any order on merits of the case, the matter may be remanded for a fresh decision.