2017 (10) TMI 1365 - HC - Central Excise

Clandestine removal - it was alleged that 504 personal computers were cleared without payment of duty - Held that - It is seen from the original order as well as the order passed in appeal on the finding that there was clearance without payment of duty, was not based upon concrete material. Invoices are now produced. If these records had been produced before the Adjudicating Officer, probably the Adjudicating Officer could not have come to the conclusion that he did. The impugned order is set aside insofar as the same relates to the rejection of the claim of the appellant and the matter is remanded back to the Adjudicating Officer for a fresh consideration - appeal allowed by way of remand.

Issues involved:
1. Alleged discrepancies in the production of computers leading to a show cause notice.
2. Appeal under Section 35G of the Central Excise Act, 1944.
3. Tribunal's decision confirming demand for 504 personal computers cleared without duty payment.
4. Rejection of appellant's claim for payment of differential duty on computers supplied to the Department of Telecommunications.
5. Questions of law raised regarding Tribunal's decision being based on irrelevant material and lack of opportunity to produce relevant records.
6. Dispute confined to the period 1995-1997 due to inability to produce records before the Adjudicating Officer and Tribunal.
7. Tribunal's failure to consider appellant's request for verifying payment of differential duty and refusal to direct the Department to verify records.
8. Tribunal's decision based on lack of concrete material and invoices produced later affecting the original order.
9. Appeal allowed, impugned order set aside, and remand to Adjudicating Officer for fresh consideration.

Analysis:
1. The appellant, a Government of India enterprise under the Department of Atomic Energy, faced a show cause notice regarding alleged discrepancies in the production of computers without duty payment. The Tribunal upheld the demand for 504 computers cleared without duty payment but allowed the appeal on other aspects. The appellant raised substantial questions of law regarding the Tribunal's decision being based on irrelevant material and lack of opportunity to present relevant records.

2. The original dispute spanning 1988-2004 was limited to the period 1995-1997 due to the appellant's inability to produce records before the Adjudicating Officer and Tribunal. The appellant contended that they possessed the records but were faulted for not presenting them. The Tribunal's failure to allow the appellant to produce records before the original adjudicating authority was deemed unfair, leading to a favorable ruling on this aspect.

3. The Tribunal's decision confirming clearance of 504 computers without duty payment was found to lack concrete material, with invoices later produced that could have influenced the original order. The questions of law raised by the appellant were answered in their favor, leading to the appeal being allowed, the impugned order set aside, and the matter remanded back to the Adjudicating Officer for a fresh consideration.

4. The Adjudicating Officer was directed to provide a date for a personal hearing, allowing the appellant to produce the necessary records for a reevaluation of the case. Consequently, any pending miscellaneous petitions were to be dismissed, with no specific order regarding costs. The judgment highlighted the importance of allowing parties to present relevant evidence and ensuring a fair opportunity for all sides in legal proceedings.

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