2014 (8) TMI 440 - AT - Central Excise

Waiver of pre deposit - Clandestine manufacture and removal of goods - Violation of principle of natural justice - Denial of request of cross examination - Held that - As regards the non-receipt of data stored in the computer seized during the investigation, the print outs of the data contained therein were taken during the Panchanama Proceedings dated 24/6/2010 and 25/6/2010. Sri Muralidharan Nair, authorized signatory was present during the said proceedings and have acknowledged - image file of the data from the CPU seized at the factory of appellant was taken and handed over to the appellant vide Panchanama proceedings dated 10-08-2010. Sri. Manoj Mittal, Managing Director of the appellant firm was present during the said proceedings and has acknowledged the receipt of the copy of the image file - From this factual position evidenced from the records, the contention of the appellant that they were not given copies of the relied upon documents is clearly not sustainable and accordingly we reject this contention. As regards the non-handing over of the non-relied upon documents, it is on record that the same had already been returned to the concerned parties as evidenced from the letter dated 21-10-2013 of the investigating agency to the adjudicating authority. The evasion of excise duty in the present case is based on documentary evidence which clearly shows clearance of goods without payment of duty form the transactions recorded in the computer seized from the factory of the appellant. This is further corroborated by the unaccounted purchase of raw materials from M/s Sigma Minerals and M/s Hitech Plast. From the invoices issued by M/s Hitech Plast for sale of plastic containers to M/s Simco, it is seen that plastic containers sold to Simco to the extent of ₹ 40.10 lacs, ₹ 21.96 lacs and ₹ 25.45 lacs during 2009-10, 2008-09 and 2007-08 respectively have not been accounted for in the books of accounts of M/s. Simco. Similarly in respect of hydrated lime sold by M/s Sigma to M/s Simco, the transactions were not recorded in the books of account of both the parties and the transactions were carried out in cash without bringing them in the books of accounts - Further Sri. Manoj Mittal, Managing Director of the appellant firm in his confessional statements recorded vide statements dated 21-11-2011 and 17-2-2012 have admitted to these facts. Thus sufficient documentary evidences are available in the records to confirm the manufacture and clearance of paints without payment of duty by the appellant. In any case it is a settled position in law that admitted facts need not be proved - Therefore, the denial of cross examination can not said to have crossed any prejudice to the appellants - Partial stay granted.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Alleged violation of principles of natural justice.
3. Denial of cross-examination and its impact on the case.
4. Prima facie case for grant of waiver of pre-deposit.

Condonation of Delay:
The appellant filed a Miscellaneous application seeking condonation of a 51-day delay in filing the appeal, citing the shifting of the advocate's office and misplacement of necessary papers. The Tribunal accepted the reasons as satisfactory and condoned the delay, allowing the appeal to proceed.

Alleged Violation of Principles of Natural Justice:
The appellant contended that there was a violation of natural justice as some relied upon documents were not furnished, hindering their defense. However, the Tribunal found evidence that the documents were received by the appellant and rejected this contention. Additionally, non-relied upon documents were confirmed to have been returned to the concerned parties, dismissing this claim as well.

Denial of Cross-Examination:
The appellant argued that denial of cross-examination prejudiced their case. The Tribunal analyzed the documentary evidence, including transactions recorded in seized computers and statements from suppliers and buyers, finding sufficient evidence to confirm evasion of excise duty. The Tribunal cited legal precedents to support that denial of cross-examination did not cause prejudice due to admitted facts and upheld the impugned order.

Prima Facie Case for Waiver of Pre-Deposit:
Considering the substantial evidence against the appellant regarding evasion of excise duty and the absence of financial hardship shown by the appellant, the Tribunal directed a pre-deposit of Rs. 45 lakhs (approximately 50% of the duty demand confirmed). The appellant was given eight weeks to comply, and upon such compliance, the pre-deposit of the balance of dues would be waived, with recovery stayed during the appeal's pendency.

This detailed analysis of the judgment covers the issues of delay condonation, violation of natural justice, impact of denial of cross-examination, and the criteria for granting a waiver of pre-deposit, providing a comprehensive overview of the legal proceedings and decisions made by the Tribunal.