2023 (8) TMI 846 - AT - Central Excise

Violation of principles of natural justice - relied upon documents not given by Department in order to facilitate the appellant to file reply to the SCN - allegation of clandestine removal - HELD THAT - It can be seen from the acknowledgement that the appellant has received only documents listed in Annexure-A. The details of the invoices / bills on which the quantification of the duty is done is contained in Annexure-B. The Department ought to have given the copies of such invoices or bills which have been seized and used to derive the quantum of duty. It is also pointed out by the learned counsel that during the relevant period there was circular issued by the Board which explained that certain fabrications done at the customer site and embedded to the earth are not excisable goods and therefore not exigible to duty. The appellant has produced the copies of letters dt. 30.03.2011, 24.06.2011 and 23.12.2013. The appellant has not been supplied with necessary documents. In such circumstances, the matter requires to be remanded to the adjudicating authority who is directed to furnish the relied upon document to the appellant and also give an opportunity of hearing to the appellant with sufficient chance for adducing any further evidence. Appeal is allowed by way of remand to the adjudicating authority.

Summary

Issues Involved:
The issues involved in the judgment are evasion of central excise duty, non-receipt of relied upon documents by the appellant, excisability of fabricated items embedded to earth, and delay in issuing the show cause notice.

Evasion of Central Excise Duty:
The appellant, engaged in manufacturing and fabrication of spares/parts for heavy equipments, was found to have exceeded the exemption limit for SSI units and had not paid central excise duty on clearances above the limit. The officers seized records and issued a show cause notice for duty demand, interest, and penalties. The original authority confirmed the demand and imposed penalties. The appellant contended that they were not provided with all relied upon documents necessary for a detailed reply, hampering their defense.

Non-Receipt of Relied Upon Documents:
The appellant repeatedly requested the department for documents relied upon to quantify the duty, but did not receive them. The appellant argued that without access to these documents, they could not properly defend the case. The acknowledgment issued by the appellant upon receiving the show cause notice indicated that they were not provided with all the necessary documents, affecting their ability to respond effectively.

Excisability of Fabricated Items Embedded to Earth:
The appellant argued that most fabrication work was done at the customer's site, and the items were embedded to the earth, making them non-excisable goods. They contended that such items were customer and location specific, not marketable, and of no use to others. The appellant cited legal precedents and a circular by CBEC to support their claim that such fabricated items were not subject to central excise duty.

Delay in Issuing Show Cause Notice:
The appellant raised the issue of delay in issuing the show cause notice after the visit and seizure of documents. They emphasized that the delay, coupled with the non-receipt of relied upon documents, hindered their ability to present a proper defense. The appellant requested another opportunity to defend the case due to these limitations.

Conclusion:
The Tribunal observed that the appellant was not provided with all necessary documents crucial for their defense. Consequently, the impugned order was set aside, and the matter was remanded to the adjudicating authority with directions to furnish the relied upon documents and allow the appellant an opportunity for a proper hearing and evidence submission. The appeal was allowed for remand to address the deficiencies in the original proceedings.