2002 (10) TMI 473 - AT - Central Excise

Adjudication - Re-adjudication on remand - Scope of - Remand - Re-adjudication on remand - Redemption fine, option to redeem the goods not given

Summary

Issues Involved:
1. Clubbing of production of two units.
2. Denial of cross-examination.
3. Imposition of penalty and confiscation.
4. Verification and inquiry of records.
5. Separate legal entities and premises.
6. Bank account operations as evidence of separate entities.
7. Compliance with remand order and legal precedents.

Detailed Analysis:

1. Clubbing of Production of Two Units:
The Tribunal had remanded the matter to determine how the clubbing of production of M/s. Jayalakshmi Printing Mills (JPM) and M/s. Bharat Printing Mills (BPM) was justified under Section 37B orders. The Commissioner failed to indicate how the clearances of the two units could be clubbed, which was a crucial aspect of the remand order. The Tribunal emphasized that the lower authority should have verified the voluminous documents submitted by the defense to establish whether the two units were separate legal entities.

2. Denial of Cross-Examination:
The Tribunal noted that the original denial of cross-examination of witnesses by the Collector had caused serious prejudice to the defense. In the de novo proceedings, the Commissioner did provide an opportunity for cross-examination, which the appellants declined. However, the Tribunal observed that the Commissioner did not adequately address why the documents submitted by the defense did not establish the separate legal status of the two units.

3. Imposition of Penalty and Confiscation:
The Tribunal highlighted several contradictions in the impugned order regarding the imposition of penalties and confiscation. The Commissioner did not invoke the proviso to Section 11A in the de novo proceedings, which was initially invoked. Additionally, the Commissioner ordered confiscation without giving the option to redeem the goods, contrary to the clear legal requirement under Section 34 of the CE Act, 1944. The Tribunal also noted that the penalty imposed was not in line with the judgment of the Hon'ble Delhi High Court in the case of Pioneer Silk Mills Pvt. Ltd. and the Hon'ble Supreme Court in Rajasthan Processors (India) Ltd.

4. Verification and Inquiry of Records:
The Tribunal found that the Commissioner did not conduct the necessary verification or inquiry of the voluminous records submitted by the defense, as directed in the remand order. The impugned order lacked a detailed examination of these documents, which was essential for a fair adjudication.

5. Separate Legal Entities and Premises:
The appellants argued that M/s. JPM and M/s. BPM were located in separate premises and were distinct legal entities. The Tribunal noted that the Commissioner did not adequately address this claim. The factual position regarding the separate premises and the distance between them was not disputed by the department, yet the Commissioner failed to provide a clear conclusion on this matter.

6. Bank Account Operations as Evidence of Separate Entities:
The appellants presented evidence of M/s. BPM operating a separate bank account with the Central Bank of India since 1984. The Tribunal observed that this evidence was not sufficiently verified or considered by the Commissioner in the de novo proceedings.

7. Compliance with Remand Order and Legal Precedents:
The Tribunal concluded that the Commissioner did not fully comply with the remand order's terms. The de novo proceedings lacked a thorough verification of documents and failed to consider relevant legal precedents, including the judgments in VVS Concast Ltd. v. CCE and Quality Exports and Chemicals v. CEGAT. The Tribunal emphasized that the Commissioner should have re-examined the confiscability of goods, levy of redemption fine, and imposition of penalty in light of these judgments.

Conclusion:
The Tribunal set aside the impugned order, citing non-application of mind and failure to comply with the remand order. The matter was remanded once again for de novo consideration, directing the lower authority to pass a fresh order after affording an effective opportunity of hearing to the appellants and verifying the documents as required.