2012 (9) TMI 27 - AT - Central Excise

Application for recall of the order Held that - Once the adjudicating authority was fully aware that even assuming on account of fault of assessee the documents were not available to the assessee before commencement of the adjudication proceedings nothing prevented the adjudicating authority to issue a notice to the assessee to appear before such officer and thereupon require the department to furnish the copies of relied upon documents - Merely observing that the assessee failed to collect the relied upon documents was not sufficient to justify ex parte proceedings - ROA application is dismissed

Summary

Issues:

1. Application for recall of order dated 6-7-2010 and restoration of appeal.
2. Refusal to impose penalty due to failure to collect relied upon documents.
3. Dispute regarding furnishing copies of documents by the department.
4. Justification for ex parte proceedings.
5. Grounds for recalling the order dated 6-7-2010.
6. Observations of the adjudicating authority and their implications.

Analysis:

1. The judgment dealt with an application for the recall of an order dated 6-7-2010 and the restoration of an appeal. The application was filed due to the failure of the assessee to collect documents supporting allegations of clandestine removal of goods, despite repeated requests by the department.

2. The Commissioner (Appeals) had dismissed the appeal against the adjudicating authority's order, which confirmed a duty amount but refused to impose a penalty. The authorities cited the failure of the assessee to collect relied upon documents as the reason for not imposing a penalty, leading to ex parte proceedings against the assessee.

3. The department contended that they had requested the assessee to collect the documents and possessed copies of letters proving the same. The adjudicating authority noted that the assessee kept requesting the documents without collecting them, which was seen as a delay tactic. The department tried to show proof of sending letters to the assessee.

4. The Tribunal observed that the department was given an opportunity to furnish documents during the appellate stage but failed to do so. The Tribunal clarified that the grounds for the application could be raised in an appeal against the 2010 order but were not sufficient for recalling the order.

5. The judgment highlighted that the observations of the adjudicating authority supported the Tribunal's previous order. The authority's remarks indicated that the assessee was not provided with relied upon documents before the adjudication proceedings, which should have been done to allow the assessee to present a defense. The authority's failure to issue a notice to the assessee regarding the documents was criticized.

6. Ultimately, the Tribunal found no valid reason to recall the final order dated 6-7-2010 and dismissed the application. The judgment emphasized the importance of providing relied upon documents to the assessee before adjudication and criticized the authority's reliance on the assessee's failure to collect documents as a justification for ex parte proceedings.