2016 (2) TMI 63 - AT - Central Excise

Waiver of pre-deposit of CENVAT Credit and equal amount of penalty imposed seeked - non providing adequate opportunity in defending the case by way of supplying the documents and allowing cross examination of the witnesses as submitted by assessee - Held that - Analyzing the said contention of the appellant, we find that even though the show cause notice was issued on 17/12/2012, specifically mentioning therein to file their reply within thirty days, but the appellant chose not to respond to the said notice; also in spite of sufficient opportunities of hearings were allowed to them in December, 2012 and January/February, 2013 they failed to respond. Therefore, it is inappropriate to say that the Ld. Commissioner has not allowed sufficient opportunity to the appellant to defend their case. Simultaneously, it can not be brushed aside also that the present demand raised serious allegation ie. non-receipt of inputs, and availment of credit only on the invoices during the period May, 2008 to December, 2009 when the finished goods were claimed to have been manufactured and cleared on payment of duty. While confirming the demand, the Ld. Commissioner referred to the statement of the proprietor, the employees, the transporters, input suppliers and the certificate issued by the Chartered Engineer etc. in arriving at the conclusion that the appellant at the relevant point of time did not have infrastructure to manufacture the quantity of excisable goods claimed to have been manufactured and cleared from their factory. All these evidences need to be examined in detail after taking into consideration the reply of the appellant against such evidences. Therefore, in the interest of justice, we are of the opinion that the Appellant be provided a chance to rebut the allegation levelled against them.

Summary

Issues:
Waiver of pre-deposit of CENVAT Credit and penalty under Section 11AC of CEA, 1944.

Detailed Analysis:
The petitioner sought waiver of pre-deposit of CENVAT Credit and penalty imposed under Section 11AC of CEA, 1944. The advocate for the petitioner argued that the demand confirmation violated the principle of natural justice as the petitioner was denied a personal hearing and cross-examination of witnesses. The advocate contended that the Commissioner accepted evidence without allowing the appellant to rebut, rendering the order legally flawed. Additionally, the advocate challenged the merit of the order, disputing allegations of irregular CENVAT Credit availing. The advocate highlighted discrepancies in the evidence and requested an opportunity to present a detailed reply with supporting evidence.

The Revenue's representative countered the petitioner's arguments by stating that the Adjudicating Authority provided multiple adjournments and handed over requested documents during the proceedings. The representative argued that the petitioner's failure to respond to the show cause notice and missed opportunities to present their case undermined claims of inadequate defense opportunities. The Revenue's representative expressed willingness to remand the case under certain conditions.

The Tribunal, after hearing both sides, acknowledged the appellant's grievance regarding insufficient opportunity to defend the case but noted the appellant's failure to respond to the show cause notice and utilize provided hearing opportunities. However, considering the seriousness of the allegations and the need for detailed examination of evidence, the Tribunal decided to remit the case to the Commissioner for a fresh examination. The Tribunal directed the appellant to deposit a specified amount within a set timeframe and instructed the Commissioner to proceed with adjudication after ensuring compliance and observing principles of natural justice. The Tribunal allowed the appeal by way of remand, keeping all issues open for further consideration.