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TMI Blog2006 (6) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... erified and found to be tallying. No discrepancy was noticed. A second visit of the Central Excise Officers, at the appellant's premises took place on 20-1-2004, and a panchnama was drawn up on the said occasion. Strangely, this second Panchnama records that the Panchas "were given to understand" that "the raiding officer" had drawn a Panchnama dated 17-1-2004, in the said premises for discrepancies noticed, wherein correlating the available stock of raw materials with the input documents" whereas a bare reading of the Panchnama dated 17-1-2004, clearly shows that no such discrepancies existed. Inventories of the Cold Rolled Stainless Steel Sheets/Pattas/Pattis, and Coils (raw materials) were taken on the ground that the said inputs/raw materials could not correlate with duty paying documents, they were detained. Representative samples thereof were also drawn. The premises at Gala No. 8 were thereafter, sealed by the Central Excise Officers. The Panchnama further states that the officers, "on peeping through", one of the windows, the other galas, noticed packages bearing the name/markings of the appellants, which were probably contained utensils/inputs. These galas, too, were there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and quality wise records of the material used in the finished goods exported by the appellant. The appellant pointed out that its internal control records would completely satisfy this requirement, and that numerous records, in this regard, had already been drawn by the Central Excise authorities under Panchnama from the factory and from its office. In the absence of such records, the appellant submitted that it was not in a position to explain any accounts or answer any of the queries of the Department. The Department was therefore requested to examine the records of the appellant, which they had seized. 9. On 19-7-2004, a Show Cause Notice No. V/PI/Th-II/30-06/2004/2634 was issued to the appellant by the Commissioner of Central Excise, Thane-II. The Show Cause Notice alleged that the raw materials found in the appellant's premises for intended to be used in the manufacture of export product and rebate was claimed against invoices available had been, never entered in the appellant's factory premises, but had been diverted. The appellant was, therefore, alleged to have contravened Notification No. 41/2001-CE (NT) as well as Rule 18 of the Rules. The seized raw material was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as to why rebate claim by it which was, erroneously paid to it been demanded and recovered from it under Section 11A of the Central Excise Act, 1944, penalty should not be imposed on it, and interest on the said amount be recovered from it and rebate claim of Rs. 2,03,81,566/- claimed by it should not be rejected. 15. In the context of the abovementioned Show Cause Notices issued to the appellant, it again addressed a letter dated 15-2-2005 to the Deputy Commissioner requesting for supply of the details regarding the procedure of drawing samples of the exported goods, prior to the sealing of the export container, the identity of the officer conducting drawl of the samples, place of sealing, mode of transport and evidence thereof, identification marks, the manner of receipt and delivery of the sample parcels, parcels, place of storage of samples drawn and record if any maintained in respect thereof, and whether the balance samples had been kept intact for verification, us requested by the appellant. 16. That on 15-12-2005 itself, a Show Cause Notice No. V(73)Rebate/ARE-2/1746/4/331 was issued to the appellant by the Assistant Commissioner of Central Excise, again alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Writ Petition No. 5767/2005 setting out the facts of the case in detail. The Show Cause Notices were challenged on the ground of apparent and gross mala fide, deliberate denial of natural justice, vindictive action, suppression of evidences, concoctions of false evidences and the intervention of the High Court was therefore sought to avoid palpable injustice to the appellant. 23. Vide its order dated 1-9-2005, the Hon'ble Bombay High Court disposed of Writ Petition No. 5767/2005 with direction, to the Learned Commissioner to first adjudicate all applications pending before him and thereafter to adjudicate the Show Cause Notices. The Minutes stylled as "Pursis" prepared by the department was part of the said order dated 1-9-2005. 24. Consequent to the above said decision of the Bombay High Court, the appellant requested for expeditious decision by the Learned Commissioner by addressing letter dated 21-9-2005 and 2-10-2005 by the Learned Commissioner by addressing letter dated 21-9-2005 and 2-10-2005(sic) for which the Deputy Commissioner responded vide letter dated 6-10-2005 in which no personal hearing was accorded. The Learned Commissioner thereafter has on 28-10-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; as the Show Cause Notice was based on non-receipt of raw material in the petitioner's premises, and was based on records of purchase, transportation, etc., the Monthly Production Statement File (No. 23) could not be said to be of relevance in answering the charges against the appellant. 25. Aggrieved by the aforesaid impugned order passed by the learned Commissioner, the appellant contends that the above referred findings are manifestly perverse and untenable in law. The observation of the Commissioner that in reply to the allegations leveled by the appellant would cause prejudice to the adjudication proceedings will tantamount to utter disobedience to the directions issued by the Hon'ble High Court. 26. It is contended that non supply of the File Nos 20 to 23 and other documents, statements, information and correspondence connected with the case is against the basic principles of natural justice and that without providing the same, the learned Commissioner cannot insist upon final reply to the Show Cause Notices. The observation of the Learned Commissioner that the Files 20 to 23 were not relied upon by the revenue was entirely perverse. If these files were not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal has no jurisdiction to deal with even the limited question of limitation relating to rebate of duty on export as per proviso to Section 35B of the Central Excise Act, 1944, when the Tribunal cannot take up the main substantive issue of rebate claim on export, it can not take up the procedural issue relating to time bar tor limitation is only species of the generic issue pertaining to rebate claim. (b) Next he relied upon the case of Punjab Chemicals & Pharmaceuticals Ltd., v. CCE, Chandigarh - 1997 (89) E.L.T. 782 (Tri.). In the above case, excise duty paid on goods which were ultimately exported in modification of plan to divert the goods for home consumption. The nature of claim is of rebate of duty consequent on export of goods and not of refund, which is covered by the proviso to Section 35B(I) of the Central Excise Act, 1944. Hence the appeal in that case is held as outside the jurisdiction of the Tribunal. (c) Lastly he relied upon the decision in the case of Madura Coats Ltd. v. CCE - 1990 (49) E.L.T. 237 (Tri.), wherein it is held that the Tribunal is not empowered to decide the matters relating to rebate of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 34. The appellant is trying to misinterpret the directions of the Bombay High Court, the observation of the Commissioner is only aimed at the preservation of equity to the adjudication proceedings, which is in consonance with the directions of the High Court. 35. The department has made certain charges against the appellant based on records. The department has exclusive right to rely upon one or other documents. If the files at Serial No. 20 to 23 are not relied upon, it means they are not holding any evidence in support of the charges raised in the Show Cause Notice. The bank files and sales tax documents can be obtained from the concerned department and as far as die payment records to transporters are concerned, it can be procured from the particular transporter. None of these is destructible unilaterally by the loss of one set of copies. This kind of exaggeration if exposing unholy intention of the appellant to defend their case. There is no doubt that the files in serial No. 20 to 23 shown in the Annexure to the Panchnama dated 21-1-2004, are integral part of the Panchnama but the same are not integral part of the Show Cause Notice. In the course of ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; The departments claim on non-receipt of inputs or Sales Tax report in the face of the information by way of documentary evidences claimed by the appellants under File Nos 20 - 23 which include available Inputs of SS Coils under Panchnama; verification reports of the Range Officers' available transport records under Files 20-23; and unique linkage of Purchased inputs used to the Export products under the Production Log-23 for period 2002-03, 2003-04, seized by the department. (vi) The departments allegation of substituting the costly Inputs on which proportional Excise Duty has been admittedly been paid, with Cheaper Inputs without any Duty Paying Documents etc., in the face of the department valuing the Inputs at Rs. 70/- instead of the Purchase Input Invoice rate of Rs. 33,50 (sic) per kg. (vii) Incapacitation caused to the Appellants - in establishing co-relation of Inputs - Exported Goods; Rebuttal of Vehicle owner statements, due to non-supply of various records, documents and information and regarding crucial and vital documents drawn under Panchnama under Riles 20-23. 38. The department representative has failed to rebut any of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt required the Learned Commissioner to adjudicate all such issues completely under the pending applications, apart from the adjudication and consideration of the requirement of documents, statements, records, and information specified in letter dated 19-8-2005, which was a specific prayer in the Writ Petition. Instead of following the directions of the Hon'ble High Court, I find that the Learned Commissioner sought to keep the above issues pending for being adjudicated at the time of adjudication of the Show Cause Notices. As seen from the impugned order, the Learned Commissioner gave his finding without considering the above issues and the relevant facts and circumstances, that the file purported to be missing were not relied upon in the Show Cause Notices and that therefore, no prejudice was being caused to the appellant on this score. The said observation of the Learned Commissioner is devoid of any merits. Moreover, there is considerable force in the submissions made by Learned Counsel for the appellant and that the documents forming Annexure to the Panchnama are integral part of the Panchnama and once the Panchnama is relied upon, it is not open to the department to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be considered at the time of adjudication of the Show Cause Notice" I am in complete disagreement of this score, when the Hon'ble High Court has directed to adjudicate all issues consciously, such blatant and apparent mis-indulgence even though being recognized by the Learned Commissioner, cannot be postponed at any cost and allowing such laxity will jeopardize the very essence of justice. Failure to provide the records and information sought for will clearly vitiate and prejudice the effective defense of the appellant, and amounts to denial of natural justice. It is a settled proposition in law that any document essential to the unfolding of the narrative and supply of the same referred and drawn under Panchnama is necessary, whether in the result the effect of it is for or against the Revenue or the assessee. No adjudicating authority can, therefore, refuse production of such a document simply because that document which is to be used against the subject is not relevant in its prescription. This would certainly amount to refusal of original opportunity to defend. The appellant has also alleged change in the stand of the department, from time to time in respect of availability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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