2005 (1) TMI 692 - AT - Central Excise

Issues Involved:
1. Validity of the order passed by the Commissioner without personal hearing.
2. Alleged non-supply of relied upon documents to the applicants.
3. Basis of duty demand on the consumption of electricity.
4. Financial hardship claimed by the applicants for waiver of pre-deposit.
5. Use of inappropriate language in the appeal memo.

Issue-wise Detailed Analysis:

1. Validity of the Order Passed by the Commissioner Without Personal Hearing:
The applicants argued that the Commissioner passed the impugned order dated 29.11.2005 without conducting any proceeding on that day, despite the director of the applicant's company being present for a personal hearing. The order was alleged to have been passed without considering the letter dated 28.11.2005, which was personally handed over to the Commissioner. This led to the claim that the order was predetermined and passed without application of mind. The Tribunal observed that the counsel for the applicants had informed the Commissioner about his inability to attend the hearing on 29.11.2005. Therefore, it was unreasonable to expect the Commissioner to wait for someone else. The Commissioner had considered the letter dated 28.11.2005 while passing the order, indicating that the order was not passed with a predetermined mind.

2. Alleged Non-Supply of Relied Upon Documents to the Applicants:
The applicants claimed that they were not provided with the relied upon documents mentioned in the show cause notice, which handicapped their ability to respond. The Revenue countered that the relied upon documents were clearly mentioned in the show cause notice and were already available with the noticee. The Tribunal found that the claim of non-supply of documents was not correct, as the show cause notice itself stated that the documents were with the applicants. The applicants did not produce any letter requesting specific documents, and it was presumed that the copies of the electricity bills would be available in their records.

3. Basis of Duty Demand on the Consumption of Electricity:
The entire basis of the demand was the consumption of electricity, with the Commissioner determining that 941 units of electricity were required to produce one metric ton (MT) of ingots. The applicants argued that the Commissioner did not account for the electricity used for the Rolling Mill, which started in June 2003. The Tribunal noted that the Commissioner had worked out the short production recorded in the RG-I register by considering all relevant materials and found evidence of evasion of duty. The Commissioner had taken into account the electricity consumption figures provided by the assessee for the year 1997-98 and found that the consumption of 941 units per MT was reasonable.

4. Financial Hardship Claimed by the Applicants for Waiver of Pre-Deposit:
The applicants claimed financial hardship, stating that they would face undue hardship and harassment if the entire disputed demand of duty and penalty was not unconditionally stayed. They referred to their balance sheet as on 31.3.2005, showing huge losses. The Tribunal directed the applicants to pre-deposit 50% of the duty demand within 12 weeks, considering their financial position. If the amount was deposited, the balance amount of duty and penalty would be waived for hearing the appeal. Failure to deposit the amount within the specified time would result in the dismissal of the appeal.

5. Use of Inappropriate Language in the Appeal Memo:
The Tribunal took strong exception to the vituperative, insulting, and browbeating language used in the appeal memo against a quasi-judicial authority. The learned counsel for the appellants sought to keep the matter in the second sitting and later presented a written apology signed by the Director on behalf of the company. The Tribunal accepted the apology and expected that such unnecessary language would not be used in the future.

Conclusion:
The Tribunal found that the Commissioner had considered the relevant materials and provided ample opportunities for personal hearing. The claim of non-supply of documents was unfounded, and the basis of the duty demand on electricity consumption was reasonable. The applicants were directed to pre-deposit 50% of the duty demand, considering their financial position. The Tribunal also accepted the apology for the inappropriate language used in the appeal memo.

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