ORDER

ASHOK BHAN, J.

1. Revenue has filed these appeals under Section 35-L of the Central Excise Act, 1944 (for short the Act) against the final order Nos.155-159 of 2002 dated 29.4.2002 passed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short the Tribunal) in Appeal Nos.E/1484-1485/2000-B, E/1895-1896/2000-B, E/1869/2000-B whereby the Tribunal allowed the appeals filed by the respondents herein and set aside the order-in-original passed by the Commissioner, Central Excise(Adj.), New Delhi.

2. Facts in the case of M/s. India Thermit Corporation Ltd.:

M/s India Thermit Corporation Ltd., respondent No.1 herein, (for short ITCL)is engaged in the manufacture of Thermit Portion and Thermit Welding Equipments. Respondent as classifying these products under Chapter Heading 3810.00 and under various sub-headings of Chapter 84 respectively. The main product of the respondent is Thermit Portion used in jointing of rails of Indian Railways. Thermit Portion manufactured by the respondents are cleared by two methods:

(a) Outright sales to Indian Railways which is around 20% of the production along with consumables such as thimbles, ignition matches, asbestos powder, etc.

(b) respondents undertake rail jointing work of the Indian Railways on contract basis and consume the balance 80% of Thermit Portion in the jointing work.

3. ITCL was issued a show cause notice dated 18.1.1999 demanding differential excise duty of Rs.62,60,022.42 under proviso to sub-section (1) of Section 11A of the Act on the ground that it has willfully and deliberately indulged in mis-classification of various excisable goods through mis-declaration of their nature, description, suppression of facts and under-valuation of excisable goods cleared to self for rail jointing at different sites of India in an attempt to beguile the department with an intent to evade payment of excise duty. Mr. Alok Nagory, Managing Director of ITCL was also required to show cause as to why penalty should not be imposed upon him under Rule 209-A of the Central Excise Rules, 1944 (for short the Rules).

A detailed reply dated 10.11.1999 was filed by the respondents along with copies of the documents in support of their contentions.

4. The Commissioner of Central Excise(Adjudication), authority in original, by his order dated 31.1.2000 confirmed the demand for differential duty of Rs.62,60,022/- on ITCL and imposed penalty of equivalent amount under Rule 9(2), 226 and 173Q of the Rules along with Section 11AC of the Act. Penalty of Rs.1,00,000/- (rupees one lac) was also imposed on Shri Alok Nagory, Managing Director of ITCL under Rule 209A of the Rules.

5. Feeling aggrieved against the order-in-original passed by the Commissioner, ITCL and its Managing Director filed appeals before the Tribunal.

6. Facts in the case of M/s.Asiatic Thermics Ltd.

M/s Asiatic Thermics Ltd., respondent No.3 herein, (for short ATL) is engaged in the manufacture of dry moulds and thermit welding equipments and classifying its products under Chapter Heading 8479.00.

7. A show cause notice dated 18.1.1999 was issued to ATL for demanding differential duty of Rs.33,80,585 during the period 1993-94 to 11.9.1996 on the ground that ITCL is the "holding company" and ATL is the "subsidiary company". ATL is solely dependent upon ITCL for supply orders and all the goods manufactured by ATL as to be sold to ITCL for further marketing by them. ATL under-valued the goods resulting in non-payment of differential duty of Rs.14,61,392/- by ATL. Apart that, ATL mis-declaration of the nature and composition and suppression of the usage of goods, mis-classified its products and wilfully evaded excise duty to the tune of Rs.19,19,193/- totalling to Rs.33,80,585. Shri R.S.Maheshwari, Director of ATL and Shri Alok Nagory, Managing Director of ITCL were also asked to show cause as to why penal action be not taken against them under Rule 209A of the Rules.

8. Detailed reply was given to the show cause notice as also the writ