2009 (6) TMI 510 - AT - Central Excise

Adjudication- RUDs- The appellants challenge the order passed by the Commissioner at Panaji, Goa, whereby the authority apart from demanding the duty and interest payable thereon, has also imposed penalty against each of the appellants. The impugned order is sought to be challenged by the company and its Directors on two grounds, namely, failure on the part of the authorities to comply with the basic principles of natural justice inasmuch as that the appellants were not furnished with copies of all the documents relied upon and the documents which were seized in the course of investigation were not returned and their request for cross examination of the persons whose statements were recorded was rejected and secondly on the ground that admittedly the cash amount, which was recovered in the course of investigation from the premises of the appellant company was to the tune of Rs.30,67,989/- in the month of February, 2005 and a sum of Rs.16,77,482/- in the month of March, 2005 and considering the same the duty amount could not have exceeded the sum of Rs.15,46,229/-. The challenge on behalf of the employees of the appellants is that they had carried out their duties under the instructions from their masters and, therefore, they could not have been penalized in the matter as they had not done anything with the intention of evading the duty but had merely performed their obligation towards their masters. The challenge on behalf of the purchaser is to the effect that the appellant is not covered by the expression person under Rule 26 of the Central Excise Rules, 2002 and that the company is not a natural person and hence could not have been subjected to penalty under the said Rule. Held that-. However, in this case, as we have already held that the failure on the part of the authorities to furnish all the relied upon relevant documents has resulted in violation of basic principles of natural justice and the same is sufficient to set aside the impugned order, it is not necessary to deal with the said issue in detail and suffice to observe that the respondents are duty bound to follow the said circular in relation to the seized documents, which are not relied upon. In the result, the appeals filed by the company and its Directors as well as its employees are allowed in the above terms and the matters are remanded to the adjudicating authority for fresh decision on the basis of observation given above.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Duty liability restriction based on cash found.
3. Penalty imposition on employees.
4. Definition of "person" under Rule 26 of the Central Excise Rules, 2002.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellants contended that the authorities failed to comply with the principles of natural justice by not furnishing copies of all relied-upon documents, not returning unrelied seized documents, and rejecting the request for cross-examination of persons whose statements were recorded. The correspondence between the appellant company and the department revealed continuous demands for documents and requests for cross-examination, which were either ignored or inadequately addressed. The tribunal found that the failure to provide relevant documents and the rejection of cross-examination requests amounted to a denial of a fair opportunity, thus violating the principles of natural justice.

2. Duty Liability Restriction Based on Cash Found:
The appellants argued that the duty liability should be restricted to the amount of cash found during the investigation, which was Rs.30,67,989/- in February 2005 and Rs.16,77,482/- in March 2005, totaling Rs.15,46,229/-. The tribunal rejected this contention, stating that duty liability cannot be solely based on the cash found but must consider the entire documentary evidence collected during the investigation, including records of clandestine removal of goods.

3. Penalty Imposition on Employees:
The employees of the appellant company argued that they were merely following instructions from their superiors and did not intend to evade duty. The tribunal noted that the liability of the employees would depend on the findings of the adjudicating authority. The tribunal rejected the contention that employees could not be held liable for the company's misdeeds merely because they were following orders. However, the tribunal allowed the appeals of the employees on the ground of violation of principles of natural justice and remanded the matter for fresh adjudication.

4. Definition of "Person" under Rule 26 of the Central Excise Rules, 2002:
The appellant company contended that it did not qualify as a "person" under Rule 26 and, therefore, could not be subjected to a penalty. The tribunal referred to the definition of "person" under Section 2(42) of the General Clauses Act, 1897, which includes any company or association or body of individuals, whether incorporated or not. The tribunal also cited various Supreme Court decisions, concluding that the term "person" under Rule 26 includes both living and non-living entities, such as companies. Consequently, the tribunal dismissed the appeal on this ground.

Conclusion:
- The appeals of the company and its Directors (Appeals No. 268, 269, 270) and the employees (Appeals No. 296, 297) were allowed on the ground of violation of principles of natural justice, and the matters were remanded for fresh adjudication.
- The appeal regarding the restriction of duty liability based on cash found was rejected.
- The appeal by M/s. Kundil Ispat Ltd. (Appeal No. 319) was dismissed, affirming that the company qualifies as a "person" under Rule 26 and is subject to penalty.