2013 (12) TMI 700 - AT - Central Excise

Right to cross examine - Clandestine removal of Goods - Waiver of Pre-deposit Held that - The documents were seized from the premises - Inspite of searches carried out in the factory and other premises of the applicant and their employees, the Department could not retrieve any incriminating documents - even though the statements of the proprietor of the Transporter were against the applicants and also the documents relied in the show cause notice were seized from other premises, the applicants were not allowed cross-examination of the person concerned as requested by them repeatedly during the course of adjudication proceeding, on the ground that Applicant should not be allowed to build their defence by such examination - Prima facie, there is violation of principles of natural justice - the applicants are able to make out a prima facie case for total waiver of amount Pre-deposits waived till the disposal Stay granted.

Summary

Issues:
Application for waiver of pre-deposit of duty and penalty.

Analysis:
The application before the Appellate Tribunal sought a waiver of pre-deposit of duty amounting to Rs.1.17 crores along with an equal penalty. The applicant, engaged in the manufacture of Pig Iron, was accused of clandestinely removing 5000 MT of Pig Iron based on documents recovered from M/s. Rana Roadways. The applicant's consultant argued that there was no other evidence supporting the alleged removal apart from the documents maintained by the transporter. The Director of the applicant disputed the entries related to clandestine transportation during the adjudication process and requested cross-examination of the transporter, which was denied, leading to a violation of principles of natural justice.

The Department's representative contended that the only evidence supporting the allegation was the documents from M/s. Rana Roadways and the proprietor's statement admitting engagement in goods movement. After hearing both parties and examining the records, the Tribunal noted that the entire allegation of Pig Iron removal was based on documents from the transporter and the proprietor's statement. Despite searches at the applicant's premises yielding no incriminating documents, the request for cross-examination of the transporter was repeatedly denied during adjudication. The Tribunal found merit in the argument that there was a violation of natural justice principles, allowing the applicant's plea for a total waiver of pre-deposit. Consequently, the pre-deposit of all dues was waived, and recovery stayed during the appeal process, with the Stay Petition being allowed.

In conclusion, the Tribunal granted the waiver of pre-deposit and penalty for the applicant, citing the lack of substantial evidence beyond documents from the transporter and the denial of the opportunity for cross-examination as key factors in the decision. The judgment emphasized the importance of upholding principles of natural justice in adjudication proceedings, ensuring fairness and due process for the parties involved.