2003 (3) TMI 389 - AT - Central Excise

Adjudication - Natural justice - Cross-examination - Clandestine removal, undervaluation - Statements of customers

Summary

Issues:
1. Duty payment on plastic injection moulding machines
2. Denial of opportunity of hearing to appellants
3. Retraction of statements by one appellant
4. Lack of reply to show cause notice by two appellants
5. Validity of duty payment based on evidence

Analysis:

Issue 1: Duty payment on plastic injection moulding machines
In the impugned order, the Commissioner found that duty was underpaid on plastic injection moulding machines by the appellants due to underdeclaration of capacity, dimensions, and exclusion of the cost of free parts. The demand for duty was confirmed, and penalties were imposed.

Issue 2: Denial of opportunity of hearing to appellants
The first appellant, Polymech Plast Machines Ltd., was not granted a personal hearing despite requesting it after cross-examination of witnesses. The Tribunal, citing a previous case, emphasized that a party must be heard post cross-examination to present evidence. As the appellant was not given a proper opportunity to present evidence, the Commissioner's order was set aside, and the matter was remanded for a hearing.

Issue 3: Retraction of statements by one appellant
The statements of K.R. Bhuva, partner of two firms, admitting contraventions were retracted, claiming duress during the initial admissions. However, the Tribunal found the retractions unconvincing, stating that the circumstances did not suggest compulsion. Additionally, customer statements and a sales manager confirmed discrepancies in machine capacity and dimensions, supporting the department's case.

Issue 4: Lack of reply to show cause notice by two appellants
The other two appellants did not file a reply or request a hearing in response to the show cause notice. The Tribunal noted that Section 11AC of the Act does not mandate a hearing if not requested. As no valid argument was presented to necessitate a hearing in the absence of a reply, the Tribunal dismissed the claim for a hearing to be provided.

Issue 5: Validity of duty payment based on evidence
The evidence, including customer statements and a sales manager's confirmation of discrepancies, supported the department's case regarding underpaid duty on the machines. The Tribunal concluded that the evidence did not indicate any error in the Commissioner's order concerning these two appellants, leading to the dismissal of their appeals.

In conclusion, the Tribunal set aside the Commissioner's order for one appellant due to the denial of a proper hearing, dismissed the appeals of the other two appellants for lack of reply and necessity of a hearing, and upheld the duty payment demand based on evidence for all appellants. Appeal E/2068/96 was allowed, while Appeals E/2069 & 2148/96 were dismissed.