9911796707
TMI Blog2003 (12) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... material which is imported fabric in the matter and all other related persons to show that the invoices have been used for manufacture of the final product which are cleared. The appellants have been stating that what they have cleared is only re-inked ribbons and not virgin ribbons. It is stated by them that the customers had been sending the ribbons for re-inking and the appellants have only done the said activity of re-inking the ribbons and the registers which have been relied on pertained only to this portion of the activity. There is no clear cut finding on this aspect of the matter and it cannot be said that appellants have not carried out the process of re-inking and had have utilized the imported fabric for the purpose of re-inking and thus have cleared therein the computer ribbons as new goods. Revenue ought to have examined the registers pertaining to import of the ribbons to say as to whether the said ribbons had been utilized for the purpose of re-inking on the customer s ribbons. The benefit of doubt has to be given to the appellants. The Commissioner has violated the terms of the remand order of the Tribunal and for that reason alone, the impugned order is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g receipt of used ribbons and the same having been reconditioned or re-inked and the order pertaining to the defence taken by the appellants. Therefore, while granting waiver of pre-deposit and stay of recovery, we deem it proper that the impugned order is set aside and matter is remanded to the Commissioner for de novo consideration. The Commissioner should disclose the evidence on which the department is proceeding against them, particularly if they are not relying on the 108 seized floppies, and hear the recording the order. The order should be a speaking order dealing with all the aspects of the matter pertaining to the allegations and the defence taken up by the appellants. The Commissioner shall also deal with the aspect pertaining to time bar which has been raised in the matter . 2. The above direction of the Tribunal is as a consequence of earlier directions given by the Tribunal in Order No. 859/1994, dated 10-11-94 [1995 (76) E.L.T. 334 (T)]. The findings recorded by the Tribunal in Para 7 of the said order is extracted herein below :- 7. We have considered the pleas made before us. The demand has been raised against the appellants for the reason that the appellants in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heck of the document filed by them as statutorily required in terms of Rules 173H and other Central Excise Rules. Merely stating that only some of the cassettes received for re-inking were returned is not enough. The authorities should have given the result of the investigation in regard to the D-3 intimation and also in regard to the discrepancies found. This not having been done, we hold that the order cannot be considered as a proper one. In regard to the plea that the appellants have been denied access to information as contained in the floppies as except for a small number of copies supplied were found defective and information could be retrieved only from a small numbers, out of the total of 108 floppies, it is observed that the appellants had made their plea in this regard before the learned lower authority and the said authority has noted this plea in Para 115 which is reproduced below for convenience of reference : Their next averments are that they have not been provided with all the informations contained in the floppies seized from them and also were not provided with the relevant details with regard to Annexures III, IV and VI of the Show Cause Notice and as such, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een scrutinised by the authorities and it should not have been difficult for the authorities to have furnished the copies of the same in case the copies of floppies could not be given. In view of the above, there is force in the plea of the appellants that in the absence of copies of floppies or the other relevant documents having been made available to them, they were handicapped in their defence. No doubt it is shown from the records that copies of the floppies had been given to them, but the appellants had found the same to be defective and the authorities in fairness should have given the copies of the floppies again. The appellants would know better about the information fed into the floppies and the relevance of the same cannot be disputed. Since the authorities have not given copies of all the floppies or other relevant documents as above, and also the investigation report it has to be held that there has been denial of principles of natural justice. In view of the above, we set aside the impugned order as not proper and remand the matter for de novo consideration after affording the appellants an opportunity of hearing in the light of our findings above. Inasmuch as the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espite clear direction from the Tribunal. It is stated that Annexure III to show cause notice is only a printout of floppies. These printouts are not self-explanatory. These printouts only provide sales details and that the appellants were transferring the stocks from the factory to various depots and effecting sales which is confirmed in the proceedings and statements recorded. That being the case, the basis for the demand cannot be termed Sales . It is stated that the demands have to be on the basis of removal from the factory. The marketing pattern confirms removal on stock transfer basis and sale from depots/branch offices. Therefore, it is stated that computer printouts are not acceptable for this reason also. It is stated that the entire case being built on 108 floppies for proposing demands and when the Commissioner has given up this vital evidence, nothing sustains for confirming the demand and, therefore, in view of violation of principles of natural justice in not supplying the floppies and floppies being corrupted, the order impugned has to be set aside. 4. Heard ld. Counsel Shri R. Raghavan who argued on the basis of written submissions and the points already delineated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The evidence is not authentic and reliable one. The Commissioner himself has stated in the order that he is not relying on 108 floppies as the same have been corrupted. Revenue has not proved the case by producing 108 floppies or giving copies of said floppies to the appellants. The Revenue has also not taken out printouts by proper mahazar and signature from the appellants and the person who has taken the printouts. In these circumstances, the case being built on a few statements drawn from said floppies cannot be said to be complete in itself to prove the charge of clandestine manufacture and clearance. The direction given by the Tribunal twice in the matter for supplying the relied upon documents to the appellants have not been complied with by Revenue. In this circumstances, the question of remanding the case for de novo consideration does not arise. The Apex Court in the case of Sanghi Textile Processors (P) Ltd. v. CCE, 1993 (65) E.L.T. 397 (S.C.) has clearly laid down that in terms of natural justice, the evidence relied on documents is required to be supplied especially those essential documents which are required for the purpose of the case. In the absence of the most i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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