2019 (6) TMI 725 - AT - Central Excise

Clandestine removal - Gutkha - appellant directed to approach the Commissioner for adjudication - HELD THAT - The Adjudicating Authority has not referred to any of the evidence on record and inasmuch as there was no defence reply, he has simplicitorily observed that the appellant was indulged in illegal manufacturing and clandestine removal. Inasmuch as admittedly the impugned order is an ex partee order, we deem it fit to set aside the same and remand the matter to Commissioner for fresh decision - appeal allowed by way of remand.

Summary

Issues:
1. Failure to inform the Revenue about the installation of new packing machines and discharge of Central Excise duty liability.
2. Initiation of proceedings for demand of duty and penalty by the Revenue.
3. Appellant's approach to the Settlement Commission and subsequent direction to approach the Commissioner for adjudication.
4. Commissioner's decision confirming the demand and imposing penalty without a reply or hearing from the appellant.
5. Lack of reference to evidence on record by the Adjudicating Authority in the ex parte order.

Issue 1: Failure to inform Revenue about new machines
The appellant was engaged in manufacturing Gutkha and installed two more packing machines without informing the Revenue. The machines were operational from July 2012, but no information was provided to the Revenue about their installation, leading to proceedings for demand of duty.

Issue 2: Initiation of proceedings by Revenue
The Revenue initiated proceedings to confirm a demand of duty amounting to &8377;1,83,28,000 for the period when the machines were allegedly operational without proper registration for Central Excise duty liability. The Revenue also proposed the imposition of penalties in this regard.

Issue 3: Approach to Settlement Commission and High Court
The appellant approached the Settlement Commission, which did not settle the issue and directed them to approach the Commissioner for adjudication. Subsequently, the matter was taken to the High Court through a writ petition.

Issue 4: Commissioner's decision without reply or hearing
The Commissioner proceeded to pass the impugned order confirming the demand and imposing penalties without receiving a reply from the appellant or providing them with a hearing. The decision was made despite the pendency of the matter before the High Court.

Issue 5: Lack of reference to evidence in the ex parte order
The Adjudicating Authority issued an ex parte order without referring to any evidence on record. The order concluded that the appellant was involved in illegal manufacturing and clandestine removal without a defense reply, raising concerns about the lack of due process.

In the judgment, the Appellate Tribunal CESTAT ALLAHABAD, comprising Mrs. Archana Wadhwa and Mr. Anil G. Shakkarwar, set aside the ex parte order and remanded the matter to the Commissioner for a fresh decision. The appellant was directed to submit written submissions within a month, and the Adjudicating Authority was instructed to provide an opportunity for a hearing before deciding on the issue. The Tribunal emphasized the importance of due process and the need for the appellant to have a fair chance to present their case before any decision on the demand and penalties could be finalized.