2009 (11) TMI 375 - AT - Central Excise

Penalty- The appellants have challenged the impugned order mainly on the ground of violation of principles of natural justice. The appellants submitted that the impugned order had been passed without affording adequate opportunity to them to present their case. The allegations against the appellants were found based on several documents which had not been furnished to the appellants despite their persistent requests. Held that- the impugned order was passed in violation of principles of natural justice in that the Commissioner had not provided all the relied upon documents sought for by the appellants and had not allowed cross-examination of various witnesses sought by the appellants. In the circumstances, we set aside the impugned order and remand the matter for a fresh decision by the adjudicating authority after complying with principles of natural justice. Appeals are thus allowed by way of remand.

Summary

Issues Involved:
1. Allegations of clandestine manufacture and clearance of resins.
2. Violation of principles of natural justice.
3. Denial of cross-examination of witnesses.
4. Adequacy of evidence to support findings of clandestine removal and evasion of duty.
5. Compliance with procedural requirements by the adjudicating authority.

Detailed Analysis:

1. Allegations of Clandestine Manufacture and Clearance of Resins:
The Commissioner confirmed a demand of Rs. 67,47,513/- along with applicable interest against M/s. Harika Resins Pvt. Ltd. (HRPL) for the alleged manufacture and clearance of resins under the bills of three fictitious units and by undervaluing the goods to fraudulently avail of SSI exemption during the period 10/2000 to 10/2003. Penalties were also imposed on HRPL and its Managing Director, accountant, and other individuals involved.

2. Violation of Principles of Natural Justice:
The appellants challenged the impugned order on the grounds of violation of principles of natural justice. They argued that the order was passed without affording them adequate opportunity to present their case. The appellants claimed that several documents, which were the basis of the allegations, were not furnished to them despite persistent requests. They also requested the cross-examination of witnesses, which was denied by the adjudicating authority.

3. Denial of Cross-Examination of Witnesses:
The appellants contended that the adjudicating authority denied their request for cross-examination of witnesses after examining only five witnesses on 11-12-2006. The appellants argued that the Department did not make efforts to produce the witnesses sought for cross-examination and that the statements of several persons were obtained under duress. The Commissioner noted that the cross-examination already held would be sufficient and that the appellants had been changing their stand on the cross-examination aspect.

4. Adequacy of Evidence to Support Findings of Clandestine Removal and Evasion of Duty:
The Commissioner concluded that HRPL arranged clearance and sale of resins using bills/invoices of non-existent firms to evade payment of excise duty. The findings were based on statements from various individuals, including transporters and buyers, which indicated that the appellants realized higher amounts than those shown on the respective bills/invoices. However, the Tribunal found that these statements, prima facie, did not constitute adequate evidence to support the charge of clandestine removal.

5. Compliance with Procedural Requirements by the Adjudicating Authority:
The Tribunal observed that the Commissioner did not discuss the various statements recorded during the investigation in the impugned order and relied on the opinion of her predecessor who had allowed a few 'bouts of cross-examination'. The Tribunal found that the Commissioner had not provided all the relied upon documents sought by the appellants and had not allowed cross-examination of various witnesses sought by the appellants. This was deemed a violation of principles of natural justice.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter for a fresh decision by the adjudicating authority after complying with principles of natural justice. The appeals were allowed by way of remand, and the stay applications were disposed of accordingly.