2018 (10) TMI 13 - AT - Central Excise

Clandestine removal - shortage of finished goods - open remand order - there is a request for remanding the matter once again to the Adjudicating Authority - Held that - The appellants were given an opportunity to put forth their case. Admittedly the same would include allowing of cross examination inasmuch as the appellants were free to contest the case in the manner in which they deem it fit. The Adjudicating Authority s reasoning that there was no special direction of the Tribunal to allow the cross examination cannot be appreciated inasmuch as admittedly the Tribunal did not deal with the merits of the case and the same was remanded only on the short ground of non supply of documents. The impugned order passed by Commissioner is self-contradictory inasmuch as at one place he has recorded that the appellants filed written submission whereas in another Para, he observed that no reply was filed and as such the written submission filed by the appellants were not considered by him. Appeal disposed off.

Summary

Issues:
1. Duty demand raised against the appellants based on shortages and higher prices of goods sold from depots.
2. Violation of principles of natural justice in the earlier order passed by the Original Adjudicating Authority.
3. Request for cross-examination of deponents of statements made during proceedings.
4. Allegation of non-consideration of appellant's reply and written submissions in the impugned order.
5. Contradictory observations in the impugned order by the Commissioner.
6. Need for remand to the Adjudicating Authority for proper consideration of submissions and defense by the appellants.

Analysis:
1. The appellants, engaged in the manufacture of Plywood and Block Board, faced duty demand of &8377; 73,52,347, including duty on short found finished goods. The Central Excise Officers found shortages in final products during stock taking at the factory and higher prices of goods sold from depots, leading to the initiation of proceedings.

2. The earlier order by the Original Adjudicating Authority was challenged, citing a violation of natural justice principles. The Tribunal remanded the matter for fresh adjudication, emphasizing the need for providing relevant documents to the appellants and allowing them to present their defense adequately.

3. During the de novo adjudication, the appellants requested cross-examination of a depot manager, which was rejected by the Adjudicating Authority. The Authority observed a lack of reply from the appellants, leading to a dispute regarding the consideration of appellant's submissions.

4. The appellants contended that their reply to the show cause notice was not considered in the impugned order by the Commissioner. The Commissioner's order was deemed self-contradictory as it mentioned both the filing and non-consideration of written submissions by the appellants.

5. The Tribunal noted discrepancies in the impugned order and the failure to consider the appellants' written submissions. Consequently, the matter was remanded to the Adjudicating Authority to ensure a fair opportunity for the appellants to present their case and defense adequately.

6. The Tribunal clarified that it did not delve into the case's merits but emphasized the appellants' right to contest the proceedings effectively. The Adjudicating Authority was directed to expedite the process within three months, urging cooperation from both parties to avoid unnecessary delays.