2018 (8) TMI 1383 - AT - Central Excise

Clandestine manufacture and removal - proper accounting not maintained - parallel invoices - case of appellant is that since the entire case was based on the evidence of goods transported through challans and statements of the witnesses, the same should be confirmed only after cross examination of those witnesses - Principles of Natural justice. Held that - The order passed by the adjudicating authority which is confirmed by the appellate authority appears to have not followed principles of natural justice. Order imposing duty, penalty, etc., on the appellate without providing them the copies of relied upon documents/evidence and without providing them opportunity of cross examination as well as opportunity of personal hearing is not sustainable and is liable to be set aside. But, in view of the fact that merit of the case can be determined only after analysis of oral and documentary evidence that passed the test of veracity through cross examination, it is imperative that the case is to be remanded back to the regional adjudicating authority for fresh adjudication after supply of copies of documents relied upon and after matering a provision for completion of cross examination of creditable witnesses as well as affording opportunity of personal hearing to the appellant. Appeal allowed by way of remand.

Summary

Issues:
Appeal against order denying exemption under Notification No. 08/2003 CE and demanding Central Excise duty, interest, penalty, and fine. Allegations of evasion of Central Excise duty through clandestine manufacturing and clearing of goods. Denial of natural justice, fair play, and equity in the adjudication process. Non-supply of documents, denial of cross-examination, and personal hearing.

Analysis:

Issue 1: Denial of Exemption and Demand of Central Excise Duty
The appeal challenged the denial of exemption under Notification No. 08/2003 CE and the demand for Central Excise duty, interest, penalty, and fine. The appellant, along with another company, was accused of evading Central Excise duty through clandestine manufacturing and clearing of goods without proper accounting. The order confirmed the demand, which was upheld by the Commissioner (Appeals) and challenged before the Tribunal.

Issue 2: Allegations of Evasion
The allegations against the appellant and the other company included the use of parallel Annexure-II challans for sending goods to job workers without proper accounting. Intelligence information led to raids, show cause notices, and confirmation of the demand by the adjudicating authorities. The appellant contested these allegations during the appeal, claiming a lack of clandestine removal and challenging the procedural fairness of the adjudication process.

Issue 3: Denial of Natural Justice
The appellant argued a gross violation of natural justice, fair play, and equity during the adjudication process. The appellant was deprived of copies of seized documents, cross-examination of witnesses, and personal hearing before the orders were passed. The Tribunal noted the importance of these principles in the adjudication process and found deficiencies in the procedural fairness followed by the adjudicating authority.

Issue 4: Non-Supply of Documents and Procedural Deficiencies
The appellant raised concerns about the non-supply of documents by the adjudicating authority, which the Commissioner (Appeals) defended. However, the Tribunal found discrepancies in the supply of documents and the denial of cross-examination and personal hearing. The failure to provide necessary documents and procedural deficiencies led to the decision to set aside the order and remand the case for fresh adjudication.

Conclusion:
The Tribunal allowed the appeal, setting aside the order passed by the Commissioner (Appeals) and remanding the case for fresh adjudication. The decision emphasized the importance of procedural fairness, including the supply of documents, cross-examination of witnesses, and personal hearing, in ensuring a just adjudication process. The case was to be reexamined by the regional adjudicating authority to address the deficiencies identified in the original adjudication process.