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TMI Blog2002 (10) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... 09A of the CE Rules. 2. This is the second round of appeal before the Tribunal. The matter was once remanded back vide Tribunal Order Nos. 1465 and 1466/2000 dated 19-10-2000 and while remanding the matter the Tribunal observed as under : (a) The Board has issued orders under Section 37B for clubbing of production of two units which was binding on the Collector. The impugned order does not indicate how the clubbing of the production of two units in this case has been done in view of this order of the Board under Section 37B as reported in 1993 (45) ECR 47C wherein trade notice issued by the Madurai Collectorate has been extracted which is based on this order of the Board. This matter is therefore required to be remanded to be re-determined in the light of this order which is binding on the Collector. (b) We also find that although the Collector has dealt with the request for cross-examination of the witness he has denied the same. Therefore, it was his duty to have considered the documents submitted by the defence in the reply to the show cause notice and determined thereafter as to why these documents did not indicate that the two units will be separate legal entiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed any offence with intent to evade payment of duty and had not abetted with M/s. BPM. (c) Since the Additional Duties of Excise (Goods of Special Importance) Act, 1957 as it existed at the relevant time did not contain any specific provision for penalty, the imposition of penalty and confiscation are not warranted and so also confiscation of the goods. (d) The Commissioner has passed the impugned order on re-adjudication without causing any verification or inquiry or investigation for the presence of M/s. BPT as a small hand operated factory processing cotton fabrics and for the voluminous records/documents filed by the defence despite clear direction given by the CEGAT while remanding the matter. Thus the very purpose for which the matter has been remanded has been defeated. The impugned order also does not say anywhere that the de novo order passed is after verification of the various records and hence the Tribunal order has not been complied with by the Commissioner which resulted in miscarriage of justice. (e) The licensed premises of M/s. JPM is housed in Door No. 130-A on the Erode-Coimbatore Road while that of M/s. BPM is located on door No. 130-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textile Processors (Civil Appeal Nos. 1851-1857 of 1994) . The Tribunal in its judgment had held that penalty for evasion of additional excise duty (in lieu of sales tax ) on processed textile fabrics was not leviable in the absence of any authority of law for levy of penalty under Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the provisions of Central Excise Act, and the rules made thereunder could not be imported in the Additional Duties Act. The learned Consultant sought for setting aside the impugned order and allowing the appeal with consequential relief. 6. The learned DR defended the impugned order and submitted that the terms of the remand order of the Tribunal has been complied with by the Commissioner in the de novo order and further submitted that the contention of the appellants that the Commissioner has not caused verification of voluminous records is not correct and the order impugned needs to be sustained and the appeal dismissed. 7. We have considered the rival submissions and gone through the records and perused the various judgments cited by the appellants. We observe that the issue revolves round on the question whether M/s. Bhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in the de novo proceedings passed after remand, confiscation has been ordered without any option to redeem the same in spite of the specific direction given by the Tribunal to determine the redemption fine. The Commissioner ought to have known that in terms of Section 34 of the CE Act, 1944, whenever confiscation is adjudged under the Act or the rules made thereunder, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. We are not able to understand as to under which provisions of the Act or the rules made thereunder the Commissioner has refrained from giving option of redemption of the goods when the law on this aspect is quite clear. (c) In terms of the remand order, the Commissioner was duty bound to verify the various documents submitted and relied upon by the defence, but the impugned order is silent as to the verification done by the department before passing the order. However, as regards cross-examination of the witnesses, the impugned order indicates that opportunity was provided by the department for cross-examination of the investigating officers, but the Consultant for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority was duty bound to cause re-verification of the various documents listed by the defence to establish their case. But the department instead of doing that exercise has discussed only two piece of evidence i.e. material collected by them from the pollution control board and from the Civil Supplies Department for which also the defence has filed reply. Therefore the de novo proceedings have been passed without verification of the various other documents as required under the remand order and hence it is not a speaking order. (e) We observe from the impugned order in para 36 that an observation has been made by the adjudicating authority that Further it is pertinent to note that the notice never tried to establish that M/s. BPM did not exist . We observe that all along it was not the case of the assessee that the M/s. BPM did not exist and what they have been claiming was that M/s. BPM is a separate legal entity and hence their clearances cannot be clubbed with that of the assessee (M/s. JPM). It was also claimed by them that M/s. BPM was located in a separate premises operating from Door No. 130-C while their premises was housed in Door No. 130-A, and the distance between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lk Mills (Supra) and the judgment of the Hon ble Apex Court in the case of Collector of Central Excise, Jaipur v. Rajasthan Processors Ltd. (supra). 8. In view of what has been discussed above, it would be seen that the impugned order is not legal and proper and it reflects non-application of mind on the part of the adjudicating authority. We, therefore, set aside the same and are constrained to remand the matter once again for de novo consideration in the light of our observations above. The lower authority is directed to pass an order afresh, after affording effective opportunity of hearing to the appellants in accordance with law as expeditiously as possible since this is the second time that the Tribunal is remanding the matter. Both the appeals are thus remanded in the above terms. Before parting with this case we would like to observe that though it cannot be said that there has been deliberate and conscious defiance of the terms of remand order, and by-passing the provisions of Section 34 of the CE Act 1944, on the part of the Commissioner, the impugned order has been passed in a cursory manner and non-application of mind is writ large in the impugned order. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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