Per Justice K.K. Usha :

In the above appeals at the instance of the assessees and Revenue common issues arise for consideration. We, therefore, proceed to dispose of the same under a common order.

E/1795/96, E/1791/96 and E/1792/96

2. These appeals at the instance of M/s ITC, M/s Master Tobacco Co. and M/s Crown Tobacco Co. are directed against Order-in-Original No. 5/96 dated 30.8.96. The proceedings relate to show cause notice dated 21.10.1987 covering the period 1.11.79 to 28.2.83. Under the above-mentioned order the Commissioner had rejected the objection raised by the assessee that show cause notice issued was invalid on the ground that it has issued prior to finalisation of the provisional assessment. Commissioner while ordering finalisation of the provisional assessment by the Assistant Commissioner of Central Excise directed the authority to intimate the Commissioner as and when the provisional assessment was finalized, so that the Commissioner can proceed with the adjudication on the basis of show cause notice. He also observed that direction given to the Assistant Commissioner is only an interim direction in the course of adjudication proceedings in respect of show cause notice without prejudice to any further orders which the adjudicating authority may pass subsequently. The above direction given by the Commissioner is also under challenge in these appeals.

E/1793/96 E/1794/96:

3. These appeals are filed by ITC challenging the orders passed by the Commissioner of Central Excise against Order No. 6/96 dated 13.9.96 in respect of proceedings initiated under show cause notices dated 10/11.8.83 and 8.10.84. The period involved is 1.7.80 to 31.3.82 and 1.4.82 to 30.6.83. In the impugned orders also the Commissioner rejected the contention of the assessee that show cause notices taken up for consideration are invalid on the ground that they had been issued prior to finalization of provisional assessment. In this case also the Commissioner had given direction similar to those contained in Order-in-Original No. 5/96 dated 30.8.96. These directions are also under challenge at the instance of the appellant in these appeals.

E/3610/2000:

4. This is an appeal filed by FTC against Order No. 8/99 dated 30.9.99 passed by the Commissioner of Central Excise, Delhi. While Appeal Nos. E/ 793 and 1794/96 challenging order No. 6/96 dated 13.9.96 were pending consideration before the Tribunal, Commissioner Delhi resumed adjudication of the show cause notice dated 11.8.83 and 8.10.84 relating to inclusion of notional interest and security deposits received from wholesale dealers to the price. He then passed order No. 8/99 dated 30.9.99 confirming a demand of Rs. 75.27 lakhs and directed the above amount to be adjusted against the sum of Rs. 1.10 crores already deposited by ITC in 1986 towards disputed excise duty. A penalty of Rs. 5 lakhs was also imposed under Rule 9(2). Thus, the order No. 8/99 is a sequel to order No. 6/96 dated 13.9.96 which was already challenged in appeal No. E/1793/96. If Order-in-Original No. 6/96 cannot be sustained then, as a consequence, Order No. 8/99 dated 30.9.99 should also fail.

E/2760/2001:

5. This appeal has been filed by ITC against Order No. 38/2000 dated 29.12.2000 passed by the Commissioner of Central Excise, Delhi. As mentioned earlier pursuant to the show cause notice dated 21.10.87 the Commissioner, Central Excise, Delhi had passed order No. 5/96 dated 30.8.96 holding that after finalisation of the provisional assessment by the Assistant Commissioner, the Commissioner can proceed to adjudicate the show cause notice. The above order No. 5/96 is already under challenge in appeals E/1795,1791 and 1792/ 96. As per the direction in order No. 5/96 the Deputy Commissioner of Central Excise finalised the assessment under order dated 22.9.2000 holding the ITC had paid Rs. 83 lakhs in excess of the amount due to the department. Yet the Commissioner proceeded to adjudicate the show cause notice dated 21.10.87 ra