2017 (12) TMI 1371 - AT - Central Excise

Clandestine removal - It appeared that the appellant had been supplying laminated sheets of 3mm thickness to Railways and the quantity supplied was much in excess to that, which were shown to have been manufactured in the factory - it was also alleged that some supplies were made to Railways, were not covered by gate pass issued from factory - rejection of cross-examination - Held that - the appellant was prevented due to sufficient reasons and genuine reasons from making a proper representation at the adjudication proceedings, as they were not having access to their own records at the relevant time, which were lying under seizure or possession of PICUP - also, sufficient reasons have not been assigned for denial of cross examination. Matter remanded back to the file of the adjudicating authority with directions to pass a reasoned order, after hearing the appellant, including providing of opportunity to cross-examine the witnesses necessary in support of their contentions - appeal allowed by way of remand.

Summary

Issues:
- Appeal against Order-in-Original on the issue of natural justice.

Analysis:
The appeal in this case arises from an Order-in-Original issued by the Commissioner of Central Excise, Ghaziabad, primarily concerning the issue of natural justice. The appellant, engaged in manufacturing industrial and decorative laminates, was subjected to a search/inspection by DGAE, which revealed discrepancies in the supply of laminated sheets to Railways and the local market. The show cause notice alleged clandestine activities, including the supply of laminated sheets of lesser thickness than declared. The appellant contested the notice and requested cross-examination of witnesses relied upon by the Revenue. However, the appellant faced challenges during the adjudication proceedings due to disturbances in the industry, with possession of the factory premises being taken over by PICUP. The appellant's request for cross-examination was denied by the Commissioner, citing difficulties in locating the appellant and its directors. The Tribunal found that the appellant was impeded from proper representation due to the possession of records by PICUP and that the denial of cross-examination lacked sufficient reasons. Consequently, the appeal was allowed by way of remand.

The Tribunal set aside the impugned order and remanded the matter back to the adjudicating authority. The appellant was directed to file a fresh reply to the show cause notice and a fresh application for cross-examination, providing proper names of witnesses and reasons for cross-examination. The Tribunal emphasized the importance of examination and cross-examination of witnesses in judicial proceedings under the Central Excise Act, citing the Andaman Timber case. The appellant was given 90 days to file their reply and seek a hearing before the adjudicating authority. The Tribunal stressed the need for expeditious disposal of the proceedings, considering the age of the case and the related facts. Assessment records were directed to be returned to the concerned Commissioner through the office of Commissioner, A.R., to facilitate further proceedings.