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2015 (2) TMI 605 - AT - Central ExciseClandestine removal of goods - difference between the production figures shown in the Balance Sheets and that mentioned in their respective ER-2 returns - Ex parte order - Assessee not filed reply to SCN - Held that - Impugned Order has been passed ex-parte/ and also it is not disputed that the Appellant had not filed their reply to the Show Cause Notice nor appeared for hearing before the Adjudicating Authority. We are not impressed with the arguments of the ld. Advocate for the Appellant that they could not get sufficient time to submit their reply, after issuance of the Show Cause Notice, and later on, they were not accorded an opportunity of personal hearing even though on the date of hearing they visited the Office of the Commissioner. On the contrary, prima facie, from the records and the impugned Order it can easily be inferred that there has been lack of sincerityon the part of the Appellant in participating in the adjudication proceedingbefore the Commissioner. However, in the interest of justice, we are of the view that the Appellant be given a chance to place all the documents before the ld. Commissioner in support of their defense/claim. - Matter remanded back - Decided in favour of appellant.
Issues: Application for waiver of predeposit of duty and penalty under Section 11AC of the Central Excise Act, 1944.
Analysis: The judgment involves an Application seeking waiver of predeposit of duty amounting to Rs. 26.35 crore and an equal penalty imposed under Section 11AC of the Central Excise Act, 1944. The Applicant, a 100% EOU engaged in the manufacture of Pig Iron, received a Show Cause-cum-Demand Notice alleging short payment of duty due to discrepancies in production figures between Balance Sheets and ER-2 returns for various periods. The Applicant claimed errors in their Balance Sheet for the financial year 2009-10, supported by a Statutory Auditor's Certificate and an affidavit. The Tribunal had earlier waived the predeposit of balance dues adjudged and stayed recovery during the appeal process. The Applicant argued lack of an effective hearing and passing of the Order ex-parte, leading to an inability to explain the errors in the Balance Sheet. The Tribunal decided to allow the Appeal for disposal after waiving the predeposit requirement and directed the Applicant to file a reply to the Show Cause Notice within two weeks for further adjudication by the Commissioner within four weeks from receipt of the reply. The Revenue, represented by the ld. AR, supported the findings of the Adjudicating authority, highlighting the Applicant's failure to respond to the Show Cause Notice or submit any documents before the authority. The ld. AR emphasized the need for detailed scrutiny of the Balance Sheets vis-a-vis the Auditor's Certificate provided by the Applicant. While not objecting to remanding the case for further adjudication, the ld. AR suggested fixing a time frame to avoid delays in the process. The Tribunal acknowledged the lack of response from the Applicant to the Show Cause Notice and their absence during the adjudication process. Despite the arguments presented by the ld. Advocate for the Applicant regarding insufficient time for response submission and lack of a personal hearing opportunity, the Tribunal noted a lack of sincerity in the Applicant's participation in the proceedings. However, in the interest of justice, the Tribunal granted the Applicant an opportunity to submit all relevant documents to the Commissioner in support of their defense. A time frame was set for the adjudication process, with the Applicant directed to file their reply within two weeks and the Commissioner instructed to adjudicate the case within four weeks from the receipt of the reply. The Tribunal emphasized the Applicant's cooperation with the Department without seeking unnecessary adjournments, ultimately allowing the Appeal by way of remand and disposing of the Stay Petition.
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