2008 (9) TMI 307 - AT - Central Excise

Two Show Cause Notices raising demand of duties against the same appellant in respect of final product cleared by them during the same period Feb. to June 2003 one on the ground of diversion of goods second on the ground of under valuation held that the department cannot blow hot and cold in the same breath and has to adopt only one stand. accordingly order of the commissioner set-aside and remanded the matter to Commissioner for fresh decision along with decision on the earlier show cause notices referred supra. The appellant s grievance as regards cross-examination of various witnesses and deponents whose statements are relied upon would also be looked into afresh by the adjudicating authority.

Summary

Issues:
1. Allegations of diversion of duty-free raw material
2. Contradictory show cause notices
3. Need for single adjudication order

Analysis:
1. The judgment addresses the issue of allegations made against the appellant regarding the diversion of duty-free procured raw material. The Commissioner confirmed these allegations in the impugned order, stating that the raw material was not used in the manufacture of the final product but was diverted to the open market. However, the appellant had also been issued show cause notices in the past regarding under-valuation of final products cleared during the same period. The Tribunal noted the contradiction in the allegations and emphasized the need for clarity in the Revenue's stand.

2. The Tribunal observed that multiple show cause notices were issued to the appellant by the same Commissioner, with differing allegations regarding the same goods and period. One notice alleged undervaluation of cleared goods, while another claimed that the goods had not been cleared at all. The Tribunal emphasized the inconsistency in the Revenue's stance and stressed the importance of adopting a consistent approach. It was deemed necessary for all notices to be adjudicated together to clarify the Revenue's position, ensuring a fair and just process for the appellant.

3. In light of the contradictory show cause notices and the need for a unified adjudication order, the Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision. The Tribunal highlighted the importance of addressing the appellant's grievances regarding cross-examination of witnesses and deponents. It was emphasized that the Tribunal had not delved into the merits of the case and allowed the appellants to present their defenses and submissions during the fresh proceedings before the adjudicating authority. Ultimately, all appeals were allowed by way of remand, ensuring a fair and comprehensive review of the case.