PREMIER PRINTERS Vs. COMMISSIONER OF CENTRAL EXCISE, COCHIN

JUDGEMENT

(1.) THIS appeal is directed against adjudication Order No. 7/2001, dated 28 -9 -2001 of the Commissioner, Central Excise and Customs, Cochin. The short point raised in the present appeal is that this order though passed pursuant to direction contained in Tribunals Final Order No. 1086 to 1091/2001, dated 15 -6 -2001 is contrary to the direction contained therein and for that reason alone, is required to be quashed (the order of the Tribunal alone). The duty demand has been made on M/s. Premier Printers, Angamaly though production was by some other units namely, M/s. Royal Carton, M/s. Premier Paper Converters, M/s. P.P. George and Sons etc. The case had been adjudicated under earlier Order -in -Original No. V/48/15/1/97 Cx. Adj.(Pt) dated 24 -12 -97. While setting aside that order the Tribunal made the following observations : 5. We have carefully considered the submissions made by both sides. In line with the Tribunals orders referred above, the department was required to issue Show -cause Notice to all other units. Since this has not been done, the order is bad in law. In these circumstances, we are remanding the matter to the concerned adjudicating authority for de novo consideration and the party is at liberty to raise all the other connected issues during the re -adjudication proceedings. All these appeals are allowed by way of remand. Ordered accordingly.

(2.) IT is the submission of the learned Counsel for the appellant that since no appeal had been filed against the above -mentioned order of the Tribunal it has become final. The Commissioner should have re -adjudicated the case only after issuing show cause notice to all other units. Learned Counsel submitted that the present order has been passed without observing this direction. According to him, the order passed which is contrary to the order of remand, and is required to be set aside.

(3.) WE have perused the records and have considered the submissions made by both sides. A perusal of the impugned order makes it clear that the same is being passed without issuing Notice to other units. Instead, it notes as under on the question of issuing notice : So also, Shri Reginold George has replied the SCN in the capacity as a partner of M/s. Premier Printers as well as Proprietor of M/s. Union Industries. Smt. Shymol Mathew has replied the SCN as partner of Premier Printers and as Proprietor of M/s. Royal Garments. When the claim is that no notice was issued to other units, from the above replies furnished, it is very clear that those units had taken notice of the situation analysed in the SCN. When the proprietor of a proprietary concern is put to notice, it would amount to giving notice to the unit as well. However, no notice was issued in the name of those units as no duty was being demanded from those units separately. The duty liability was on M/s. Premier Printers and all the partners had been issued with notice. It is a well settled law that when penalty is imposed on a unit which is a proprietary firm, no penalty need be imposed on the proprietor. Honble Tribunal in the case reported at 2001 (128) E.L.T. 229 (Tri. -Chennai) has decided that duty cannot be demanded from units found to be dummy by considering them as independently existing manufacturer. This is a case that squarely fits into the said decision. Here, the SCN was issued to M/s. Premier Printers since that was the firm liable to pay duty and face the penal provisions. If separate SCNs were issued, it would have amounted to recognising independent nature of other units which were owned and managed by Shri P.P. George himself. The Honble Supreme Court has, in the case reported at 1997 (92) E.L.T. 451 (S.C.) in a similar situation, taken the view that the demand ought to have been confirmed only against the assessee and by confirming the demand on all units, they had treated them as independent assessees. In the case reported at 2000 (121) E.L.T. 502 (Trib.), the Tribunal has taken the view that the demands should have been directed at M/s. High -hand, Bombay which is the parent unit and the other four units were not independent units. In this case also, M/s. Premier Printers is the main unit and even if the existence of the other units is recognised to a limited extent, in view of the documents and clearance was carried out by M/s. Premier Printers and all other units were functioning as part of the parent company.