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TMI Blog2009 (12) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... (RYP) Pvt. Ltd., Shri Vijay Chand Bothra, Jitendra Kumar Bothra, Shri Basant Shrivastava and M/s. Ganpati Industrial Corporation. 3. Under the first order, the excisable goods of 1030 MT valued at Rs. 1,03,00,000/- have been ordered to be confiscated while giving option to get the said goods redeemed on payment of redemption fine of Rs. 10,00,000/- as also has imposed penalty of Rs. 3,00,000/- under Rule 173Q read with Rule 226 of the Central Excise Rules, 1944, besides the penalty of Rs. 1,00,000/- under Rule 226 of the Central Excise Rules, 1944 and also penalty of Rs. 8,01,546/- under Section 11AC of the Central Excise Act, 1944, and has also ordered payment of interest. There is further penalty of Rs. 1 lakh on the appellants Shri Vijay Chand alias Vijay Kumar Bothra and Rs. 1 lakh against Shri Vasant Shrivastava. Modvat credit amounting to Rs. 4,69,855/- had been recovered in cash from the appellants M/s. Ashirwad Ispat (RYP) Pvt. Ltd., and they have been subjected to penalty amounting to Rs. 4,69,855/- besides payment of interest. 4. Under second order MS Square weighing 1.830 MT, MS Flat weighing 11.400 MT, waste and scrap weighing 37,870 MT totalling to 51.100 MT of fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the Commissionerate. Learned Commissioner however, on account of failure on the part of the appellants to file the reply on the basis of the records available before him passed the impugned orders as stated above. 6. Learned Advocate for the appellants while drawing our attention to the letters which were written by the appellants to the Commissionerate prior to issuance of show cause notices as well as after issuance of show cause notices and placing reliance in the decision in the matter of Novamet Industries v. Union of India reported in 2008 (227) E.L.T. 363 (All.) = 2009 (13) S.T.R. 108 (All.), Cona Inds v. CCE, Mumbai reported in 2005 (190) E.L.T. 208 (Tri.-Mumbai), Methodex Systems Ltd. v. Union of India reported in 2001 (127) E.L.T. 44 (M.P.), A.J. Cast Alloys P. Ltd. v. Commr. of Cus. (Airport Admn.), Kolkata reported in 2008 (230) E.L.T. 518 (Tri.-Kolkata) submitted that the learned Commissioner clearly erred in denying the opportunity to the appellants to meet the case of the department by not furnishing the copies of the relevant documents annexed to the show cause notice as well as by not returning the unrelied documents which were seized in the course of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paration of their reply. However, in spite of the fact that sufficient time was granted in that regard, the appellants did not furnish the necessary details and hence in the facts of the case, according to the respondent, it cannot be said that there was any failure on the part of the respondents to comply with the requirements of principles of natural justice. 8. Learned Advocate for the appellants has contended that the authority could not have imposed penalty under Section 11AC of the said Act as the provision of law comprised under Section 11AC came into force w.e.f. 28-9-96 and the relevant periods in the case in hand relate to 1994-95 and 1995-96 which were prior to the date of enforcement of Section 11AC and in that regard attention is sought to be drawn to the decision in the matter of Kody Teck Ltd. v. CC, Chennai reported in 2007 (212) E.L.T. 428. It is, however, submitted on behalf of the respondent that the penalty could have been imposed even under Rule 173Q of the said Rules. 9. As regards the contention regarding failure on the part of the adjudicating authority to furnish the copies of documents and non-return of unrelied documents, the learned Commissioner in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the show cause notice is issued. At the same time, it cannot be disputed that the documents which are seized from the party belongs to the party and department cannot have absolute right to retain such documents unless they are related to any offence or required for any investigation or enquiry by the department. In the case in hand, it is nobody s case that the documents which were seized from the appellants were required for further investigation or enquiry by the department. Being so, we fail to understand the logic behind retaining the documents of the appellants by the department and insisting for identification of only those documents which were required by the appellants for preparing their defence. Once it cannot be disputed that the documents belong to the party and there is no justifiable reason for retention thereof with the department, it would be appropriate for the department to return such documents to the party. Undoubtedly, there is failure in that regard on the part of the department in the case in hand. 13. It is to be also noted that every such failure on the part of the department cannot be made a ground to assail the order relating to duty liability pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants to putforth their defence after perusal of the documents. 17. In the circumstances and taking into consideration the decisions sought to be relied upon and facts of the case, we accept the statement on behalf of the appellants and we direct the appellants to deposit the amount of duty along with interest accrued up to the date of passing of this order within four months, needless to say that the appellants would be entitled to deduct the amount already deposited from the amount so calculated which is required to be deposited. In case of failure on the part of the appellants to deposit the required amount within the period prescribed under this order, needless to say that the consequences as contemplated hereunder will follow. 18. As rightly submitted by the learned Advocate for the appellants, the question of imposition of penalty under Section 11AC of the said Act cannot arise as the period in respect of which the duty liability is to be calculated relates to the date prior to the enforcement of Section 11AC. 19. In the result, the appeals succeed, the impugned orders are hereby set aside. Matter is remanded to decide the same afresh after returning the se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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