2014 (10) TMI 21 - AT - Central Excise

Cenvat credit - Bogus invoices - Equivalent penalty - Non supply of documents - Held that - Except for statement of Shri Surinder Mahenderu, proprietor of M/s. Nicks India, no other documents have been supplied and in the first round of appeal before the Tribunal, relied upon documents had not been supplied. . The fact of non supply of relied upon documents is clear from the observations of the Commissioner (Appeals) in para 11 of his order wherein, after mentioning the appellants plea that certain relied upon documents such as verification report of stocks, job work challans and copy of statement of Aklesh Sharma have not been supplied and that the departments officer representing the department informed that these copies can be made available to the assessee. DR has no objection if the matter is remanded to the original adjudicating authority and he undertakes that this time, all the relied upon documents would be supplied - Matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
1. Denial of natural justice due to non-supply of relied upon documents.
2. Power of Commissioner (Appeals) to remand the matter post amendment in Central Excise Act, 1944.

Issue 1: Denial of Natural Justice:
The case involves an appeal against a Cenvat credit demand on the basis of alleged availing of credit through bogus invoices without receiving any material. The appellant contended that the documents mentioned in the show cause notice were not supplied, leading to denial of natural justice. Commissioner (Appeals) set aside the order of Jt. Commissioner due to lack of supplied documents, emphasizing the need for documents to file a proper reply and defend against the charges. The Tribunal remanded the matter for providing the required documents to the appellant for a fair hearing. The adjudicating authority later dropped the proceedings for non-supply of relied upon documents, citing efforts made to locate the documents but failing to do so.

Issue 2: Power of Commissioner (Appeals) to Remand:
The Revenue challenged the dropping of proceedings due to non-supply of documents. The appeal was based on the availability of relied upon documents and statements from involved parties confessing to the alleged misconduct. Commissioner (Appeals) remanded the matter again, stating that some documents had been supplied but others were still pending, directing the adjudicating authority to reconsider the case after providing all documents. The appellant sought early hearing due to the prolonged nature of the case and the department's failure to supply the required documents despite repeated directions.

The final judgment set aside the impugned order and remanded the matter to the original adjudicating authority for de novo adjudication after ensuring the supply of all relied upon documents to the appellants for a fair hearing. The decision highlighted the importance of granting a personal hearing and directed the original authority to decide the matter within three months of document supply, considering the age of the case. The issue regarding the power of Commissioner (Appeals) to remand post-amendment was addressed by agreeing to remand the matter to the original authority if all documents were provided, ensuring procedural fairness and adherence to legal requirements.