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TMI Blog2005 (3) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Guntur, and the consequential detention order dated 7-2-2005 passed by the 3rd respondent and seeks in connection therewith a writ of Certiorari. 2. The petitioner is a public limited company having been incorporated under the provisions of the Companies Act, 1956. Its main activity is manufacturing of cotton yarn and this is 100% export oriented unit. The company started its commercial production on 4-7-2000. On account of its financial constraints the company had to approach the Board for Industrial Financial Reconstruction (BIFR), New Delhi. Subsequently, it sought permission for clearing the manufactured goods under domestic tariff area. The petitioner was accordingly permitted to clear the goods under DTA sales fixing the limit at Rs. 950 lakhs in the month of June 2003. 3. On gathering intelligence that the petitioner-company was affecting clearances without payment of excise duty, the premises of the company were inspected on 29-7-2003 and scrutinized its record. At the same time, after having noticed that the petitioner did not discharge the duty liability on the cotton yarn and cotton waste cleared by it to DTA, certain records were seized. It was followed up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ane for consideration cannot be obtained for placing before the appellate authority, and consequently there cannot be any effective adjudication of the matter. 6. The learned senior counsel further represents that it is a clear case where the documents were seized under an acknowledgment. The authority cannot deny the custody thereof and when the documents were sought to be suppressed an adverse inference clearly could have been drawn by the adjudication officer, and in having failed to do so he committed a serious illegality by passing the impugned order. To buttress the above contentions the learned senior counsel seeks to place reliance on the judgments in Sunder Ispat Limited v. Commissioner of Cus. C.EX., Hyderabad [2002 (141) E.L.T. 24 (AP)], Southern Steel Ltd., Hyderabad v. Union of India and Others, U.P. State v. Mohd. Nooh and Baburam v. Zila Parishad. We will advert to the said submission sought to be made by the learned senior counsel placing reliance upon these four judgments, a little later at the appropriate stage. 7. Following facts need to be noticed for brevity and better understanding of the matter. Admittedly, the petitioner-company is 100% export oriented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no power to remit the matter to the primary authority for fresh consideration after affording necessary and reasonable opportunities to the petitioner to submit the documents, when supplied. In this connection, it is the contention of the learned senior counsel that the adjudicating authority, which passed the impugned order, ought not to have denied or refused for summoning the documents and supplying copies thereof sought for by the petitioner before adjudicating. The decision of this Court in Sunder's case cited (1) supra, on a perusal of the facts makes it clear that the stage at which the petitioner sought for the documents appears to be a pre-adjudication stage. This court having been of the view that the documents are relevant and squarely supports the case of either the prosecution or the defence and that no adjudicating authority could refuse production of such documents only on the ground that they would be of no use to the prosecution and the refusal of a document on that account would certainly amount to refusal of reasonable opportunity to the defence and against the fair play. 13. This aspect of the matter had been dealt under the impugned order at paragraph 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the authority when the petitioner files his appeal. 16. Apropos the contention, that appeal is an empty formality inasmuch as the appellate authority cannot remit the matter to the primary authority for affording opportunity to the petitioner and for supply of documents and no purpose would be served, the learned senior counsel seeks to place reliance upon a bench judgment of this court in Sunder's case (1) supra. Further more the learned senior counsel invited our attention to the amended provisions of Section 35 of the Central Excise Act. A perusal of the said provision shows that the first appellate authority has no power to remit the matter to the primary authority for fresh consideration. That does not mean that the appellate authority has no power to give an opportunity to the petitioner either by calling for the records which are relevant or giving an opportunity to the petitioner himself to get at those documents and produce the same. The first appellate authority can take up the matter effectively on its own merits by providing post-decisional opportunity to the petitioner. In the process it is also open to the first appellate authority to draw the necessary adverse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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