2017 (7) TMI 1132 - AT - Central Excise

Ex-parte order - Clandestine removal - art silk fabric - failure of appellant to participate in the proceedings - active partner during the relevant time expired in 1978, that the business had since been closed with licence surrendered - Held that - The impugned order has merely affirmed the order of the lower authority on the ground of failure of appellant to participate in the proceedings. Consequently, the order merely reiterates that was set aside by the erstwhile appellate authority without reconsidering the aspects directed by that authority. Moreover, the remand direction of the Tribunal has also been ignored - the impugned order is not consistent with the directions issued at the time of remand - impugned order set aside - appeal allowed.

Summary

Issues:
Demand of duty for illicit removal of art silk fabric, imposition of penalty, re-examination of duty liability, failure to participate in proceedings, consistency with remand directions.

Analysis:

The appeal pertains to the demand of duty amounting to ?3,98,830.61 for the illicit removal of 1611680 mts of art silk fabric during the period from 1st August 1976 to 3rd November 1976. The demand and penalty were initially confirmed by the Collector of Central Excise, Bombay. The Central Board of Excise & Customs upheld the penalty but directed the adjudicating authority to re-examine the duty liability after providing the assessee with an opportunity to present their case regarding the valuation basis. The appellant filed a revision application with the Government of India, which was later transferred to the Tribunal. The denovo proceedings were kept pending by the adjudicating authority at the request of the appellant until the matter was resolved by the Government of India/Tribunal.

Subsequently, as there was no communication from the appellant, the adjudicating authority confirmed the demand based on available facts. The order highlighted the failure of the appellant to appear or provide written submissions despite being given ample opportunity to do so. The first appellate authority affirmed the order of the lower authority, citing rule 5 of Central Excise (Appeals) Rules, 2001, and the terms of the remand order by the Central Board of Excise and Customs, which aimed at providing the appellant with further opportunities to furnish particulars for re-determination of the duty liability.

During the proceedings, the appellant raised concerns about the notices not being received, the closure of the business, and the death of the active partner. The appellant also mentioned that the re-determination was ordered due to ongoing proceedings where the duty liability was deemed non-sustainable. Additionally, it was noted that a previous Tribunal order had set aside the penalty while remanding the matter back to the original authority for consideration along with the duty liability.

The Tribunal observed that the impugned order merely affirmed the lower authority's decision based on the appellant's failure to participate in the proceedings. It was noted that the order did not reconsider the aspects directed by the appellate authority and ignored the remand direction of the Tribunal. The Tribunal found the impugned order to be inconsistent with the remand directions and, therefore, set aside the order and allowed the appeal.