ORDER
S.S. Sekhon, Member (T)
1. These three appeals are being disposed off by this common order, since the issues are interrelated. Appeal No. E/527/03 is filed by M/s Foundry Agriculture Mining Equipment (Pvt.) Ltd. (herein after referred to assessee) against Order-in-Appeal No. Commr. (Appeal)/035/VDR/2003 dated 29.12.2003. The brief facts relevant to determine the appeals is that the appellant herein are, an assessee manufacturing equipment under chapter 84 and 85 of CETA 1985 are availing SSI benefit. On 28.6.97 the officers visited the factory of one M/s Premier Heavy Engineering Corporation (hereinafter referred to as PHEC) a partnership firm and a declarant unit also engaged in the manufacturing of the same goods under chapter 84 & 85. After conducting investigation that this unit was a ‘Dummy’ unit of the assessee appellant herein and that clearances of goods manufacture cleared by assessee unit was being cleared as of PHEC & were required to be clubbed for recovery of Central Excise duty during the period 1992-93 to 1996-97. Since M/s Premier Heavy Engineering Corporation had paid Rs. 4,97,348/- (Differential duty) vide dated 16.2.98, that amount said was proposed to be and ordered to be appropriated towards duty demands and the refund application seeking the refund of their amount since they were not issued in Show Cause Notice was rejected. Appeal No. 525 & appeal 526 herein respectively are against the orders of appropriate and rejection of report. Penalty was imposed and interest under Section 11AB was determined.
2. After hearing both sides and considering the issue it is found :-
a) The clubbing of clearances a partnership firm (PHEC) floated in 1992 of three partner one of whom is a Director in the appellant Company in Appeal No. E/527 without issuing notice to Premier Heavy Engineering Corporation would be Constituting a breach of natural justice. Therefore, the order of confirmation of duty demands, paid by Premier Heavy Engineering Corporation, on behalf of an appellant in Appeal No. E/527 and appropriation of that amount and rejection of the refund claim and orders there to cannot be upheld.
b) It is well settled, the alleged Dummy unit had to be placed on notice and before it can be determined that the production shown on behalf of such Dummy unit were not in effect product of such an unit and were actual production of another unit. Duty if any on goods cannot be accepted if production was not effected and also appropriated which was paid by such units which are found to be dummy. Duty is to be paid by a manufacturer who is an assessee and not by fictitious person found to be dummy.
3. In view of the finding we set aside the orders impugned and allow this appeals No. E/527 with direction that M/s Premier Heavy Engineering Corporation should be served with the copy of the notice and all the parties to be re-heared by the original authority and there after the issues of liabilities of duty, penalty, interest etc are to be determined. After such a determination is arrived the question of refund of the amount paid towards duty by M/s Premier Heavy Engineering Corporation should be determined. Consequently the other appeals also allowed as remand to the original authority. In view of the findings the order of appropriation of the amount is set aside and the matter also remanded back to the appropriate authority for re-determination if required.
4. Appeals disposed off in above terms.
(Pronounced in Court)