2018 (10) TMI 3 - AT - Central Excise

CENVAT Credit - removal of input, iron ore concentrate, without reversing the CENVAT Credit availed - input service tax credit availed on coal received by the appellant - principles of natural justice - Held that - It is the main claim of the appellant that the copies of the show cause notice and RUDs have not been provided to the appellant. Even though the copy of the acknowledgement has been reproduced, by the Commissioner (Appeals) in the body of this order, in the copy of the show cause notice no RUDs have been attached as part of the appeal papers. I am unable to appreciate the documentary evidence for raising the demand. It is further seen that the original authority has passed the order ex-parte, and the appellant never got a chance to defend his case before him. The matter is remanded to the original adjudicating authority to readjudicate the matter after furnishing copies of the show cause notice as well as relied upon documents to the appellant - appeal allowed by way of remand.

Summary

Issues:
1. Alleged removal of raw material without reversal of cenvat credit.
2. Availing input service tax credit on full quantity of coal despite short receipt.
3. Lack of receipt of show cause notice and relied upon documents.
4. Ex-parte order without opportunity for defense.
5. Imposition of penalty under Section 11AC.

Analysis:
1. The appeal was against an Order-in-Appeal regarding the removal of raw material without reversing cenvat credit and availing input service tax credit on coal. The appellant reversed the duty amount and interest upon discrepancies being pointed out during a visit. A subsequent show cause notice led to the imposition of duty, interest, and penalty, which was upheld by the Commissioner (Appeals).

2. The appellant argued that the lower authority did not discuss the basis for confirming the demand, and they did not receive the show cause notice or relied upon documents despite requesting them. The original authority passed an ex-parte order without allowing the appellant to present a defense. The appellant's representative requested the demand to be set aside.

3. The Revenue justified the lower authority's findings, stating that the Director of the appellant had acknowledged the receipt of the show cause notice and relied upon documents. The Commissioner (Appeals) noted that the appellant did not challenge the demand on merit before him. The Revenue also cited a Supreme Court decision regarding the leviability of penalty under Section 11AC.

4. The Tribunal found that the appellant was not provided with copies of the show cause notice and relied upon documents, despite the acknowledgement being reproduced in the Commissioner (Appeals) order. It was observed that the original authority's ex-parte order deprived the appellant of a chance to defend their case. The Tribunal noted the lack of discussion on documentary evidence supporting the upheld demand.

5. Consequently, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a reevaluation after providing the appellant with copies of the show cause notice and relied upon documents. The judgment highlighted the importance of procedural fairness and the need for a thorough examination of documentary evidence in such cases.