9911796707
TMI Blog1993 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that modvat credit was denied on the ground that gate passes were fictitious ones. The Adjudicating Authority has come to the conclusion based upon the statements of various consignors, and in view of this fact that the appellants requested for cross-examination of the persons/consignors mentioned in para 2 of the show cause notice before making detailed submissions in reply to the show cause notice but the request of the party for cross-examination of the persons/consignors was not acceded to and in view of this fact the Advocate of the party again stressed for cross-examination of the concerned parties and requested for adjournment of the personal hearing fixed for 26-4-1991. He said that the impugned order suffers from denial of prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n both sides and have perused the records. On perusal of the records, we find that there was sufficient lapse on the part of the appellants in not filing the reply to the show cause notice but we feel in the interest of justice ultimately the matter will have to go back for re-consideration as the Adjudicating Authority has not intimated to the appellants about the rejection of the adjournment of the personal hearing before passing the impugned order. In the view we have taken and after taking into consideration of the submissions made by the appellants particularly with reference to the financial position as per audited balance-sheet, we feel that this is a fit case to grant stay. In the view we have taken, the stay application is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proceedings before Departmental Officers, the discretion rested with the officer. Obviously once the Department found certain parties to be non-existent, it could not have produced them for cross-examination or otherwise. 9. Since sufficient opportunity had been given to the appellants and the case was even adjourned, once at their request, it could not be said prima facie, that as no violation of principles of natural justice was involved. Moreover repeated adjournments could not be claimed as a matter of right. 10. As regards the financial position, I find that only a provisional balance sheet had been filed and even as per this report, the current assets exceed current liabilities for the year ending 31-12-1991. Further the cases c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, the lower authorities had passed a separate order imposing penalty of Rs. 1.92 lakhs. On appeal before NRB, they had taken up the same defence as raised in this appeal, the Tribunal, at the stay stage itself had remanded the case for de novo consideration. He also stated that there were similar allegations against another assessee and in whose case also the Tribunal remanded the case for de novo consideration. He prayed for similar treatment for this case also. He also submitted that the financial condition of the company is also not good as they had incurred losses of more than Rs. 96 lakhs. Hence, he prayed for grant of stay in this case. 14. On a careful consideration of the case, I agree with the opinion expressed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stay Order No. S/335/92-NRB and Final Order No. A/245/92-NRB dated 26-5-1992 has granted stay and allowed the appeal by remand for permitting the appellants to cross-examine the witnesses. 16. In view of these orders passed by the Tribunal, the opinion of Member (J) that ultimately the appeals are to be remanded on final hearing appears to me to be the correct view in the matter. The Tribunal has already set aside penalty proceedings against the appellants and the lower authorities have been directed to grant them opportunity of cross-examination. In view of order of the Tribunal, it is but proper that stay be granted and appeal also taken up for hearing. The papers are to be placed before the Original Bench for passing final order. ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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