2015 (12) TMI 223 - AT - Central Excise

Waiver of pre deposit - Clandestine clearances through commission agent - documentary evidence as well as electronic data discovered from the possession and premises of the commission agent - Held that - Prima facie, record revealed that Investigation brought out cogent evident suggesting involvement of the parties in the above evasive practice. Not only book records but also computer printout recovered from M/s. Gopal Steel unerringly brought out the quantum of loss of duty committed by the appellant manufacturers evading duty liability thereon through unaccounted clearances. Those were transacted through the commission agent M/s. Gopal Steel and his record identified buyers of offending goods. They are tabulated in the adjudication order. - Violation of natural justice and no examination of the consignees and manufacturers were raised as defence plea in the course of hearing. But adjudication order primafacie does not bring deprivation of the appellant manufacturers from the course of natural justice. All details of the evidence of the manufacturers and commission agent were threadbare examined granting reasonable opportunity of hearing to them. Since appellants filed their reply to show cause notice that shows that the first course of justice delivery system was followed. None of the appellant disowned the entries recorded in the books of M/s.Gopal Steel speaking against them. They also did not rule out their dealing through the said commission agent. Keeping in view the financial difficulties pleaded by some of the appellants, primafacie case against them, balance of convenience in favour of Revenue, magnitude of evasion done and loss of duty found in adjudication and also following the ratio laid down in the case of Banara Valves Ltd. Vs. Commr. Reported in 2006 (11) TMI 6 - SUPREME COURT OF INDIA , it would be proper to direct pre-deposit of the amounts - partial stay granted.

Issues Involved:
1. Alleged clandestine clearance of sponge iron.
2. Admissibility and examination of evidence.
3. Violation of natural justice.
4. Change in management and its implications.
5. Speed of adjudication process.
6. Examination of consignees and manufacturers.
7. Financial difficulties of appellants.

Issue-wise Detailed Analysis:

1. Alleged Clandestine Clearance of Sponge Iron:
The appellant, manufacturing sponge iron, was accused of clandestine clearance through a commission agent, resulting in a duty demand of Rs. 1,13,66,483/-. The adjudication order included an equal amount of penalty and interest. The commission agent, M/s. Gopal Steel, maintained records of unaccounted and undervalued transactions, leading to a total duty evasion of Rs. 4,50,42,905/-.

2. Admissibility and Examination of Evidence:
The appellant argued that the allegations were based on materials recovered from a third party (M/s. Gopal Steel) and were inadmissible unless tested by cross-examination. The adjudicating authority did not examine the appellant or its buyers, nor did it allow cross-examination of necessary witnesses. The records and computer data from M/s. Gopal Steel, which detailed the clandestine removals and undervalued goods, were pivotal evidence for the Revenue.

3. Violation of Natural Justice:
The appellant contended that there was a violation of natural justice as they were not provided with the relied-upon documents in a timely manner, hindering their ability to defend themselves. The adjudication order was passed hastily, disregarding the principles of natural justice. However, the Tribunal found that the adjudication process provided reasonable opportunities for hearing and examining the evidence.

4. Change in Management and Its Implications:
The appellant highlighted a change in management after the investigation, arguing that the new management was unfamiliar with the allegations. Despite this, the new management defended the charges against the predecessor. The Tribunal noted that the appellant should have been exposed to all materials used against them without delay.

5. Speed of Adjudication Process:
The appellant argued that the adjudication order was passed with undue haste, within one and a half months of their reply to the show cause notice, despite the involvement of numerous documents. The Tribunal acknowledged the rapid adjudication but did not find it sufficient to dismiss the order.

6. Examination of Consignees and Manufacturers:
The appellant claimed that no enquiry was made from them or the purchasers of the goods. The Tribunal observed that the adjudicating authority did not examine the consignees or manufacturers but relied on the records and statements of M/s. Gopal Steel, which were not retracted and provided detailed evidence of the transactions.

7. Financial Difficulties of Appellants:
Some appellants, including M/s. Gopal Steel, pleaded financial difficulties. The Tribunal considered these pleas while directing pre-deposit amounts. The financial state of the appellants was taken into account, leading to a reduced pre-deposit requirement compared to the total duty and penalty imposed.

Conclusion:
The Tribunal directed the appellants to make pre-deposits within four weeks, with the amounts specified for each appellant. Compliance would stay the realization of the balance amount of duty, penalty, and interest during the pendency of the appeal or for six months, whichever is earlier. The Tribunal emphasized that the evidence collected was substantial and the adjudication process, despite its speed, did not violate natural justice principles.

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