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TMI Blog2009 (4) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount demanded under the impugned order in terms of Section 35F of the Central Excise Act, 1944. Since common questions of law and facts arise in both the applications, they were heard together and are being disposed of by this common order. 3. By the impugned order, the Commissioner has, while holding that the appellants had wrongly availed Cenvat credit of Rs. 50,30,033/- for the period March-April, 2006 and Rs. 51,20,192/- for the year 2002-03 thus, totalling to Rs. 1,01,50,225/- and therefore, directed recovery thereof along with interest on delayed payment under Section 11AB of the Central Excise Act, 1944 and the penalty of Rs. 1,01,50,225/- under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that failure on the part of the department to furnish the copies of the documents relied upon by them while issuing the show cause notice to the appellants has actually resulted in non-compliance of basic principles of the natural justice. Hence there is a very good case for the appellants on merits and therefore, direction to deposit the entire amount demanded under the impugned order would result in undue hardship to the appellants. 6. Learned Jt. CDR on the other hand has submitted that the records do not support the contentions sought to be canvassed on behalf of the appellants and therefore, there is no case made out of any hardship as such. 7. The law on the point that whenever an authority relies upon documents in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Officers of Central Excise, Ludhiana visited our premises on 19-4-06 and remained there till 20-4-06.They resumed various records from our premises. Now, above show cause notices have already been issued therefore, we request you to supply the following documents :- (i) Sales Book/Purchase Book/Stock Registrars both excisable and non-excisable for last 6 years (ii) Ledgers and cash/day book for last 6 years (iii) Purchase and sales bills both excisable and non-excisable for last 6 years. (iv) Original balance sheets, profit and loss accounts and schedule and other audit reports for the year 2001-2002 and 2002-2003. (v) & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21-11-2008. There is nothing on record to suggest even remotely that from 18-11-2008 till 21-11-2008 any attempt was made by the appellants to seek time to file any reply as such to the show cause notice. 8. There is no explanation on record as to what prevented the appellant from approaching the department to get the copies of the documents prior to 16-4-2008. All these facts apparently disclose that the appellants were merely interested in delaying the matter on one pretext or other. Even today, in the course of arguments, repeated the submission on behalf of the appellants was that the Tribunal should set aside the impugned order and remand the matter to the Commissioner after giving an opportunity to the appellants to file the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the copies of the documents can be collected on any working day with prior appointment. The assessee collected the copies of the documents on 21-12-05 and on that very day requested for one month's time to file reply to the show cause notice and hence requested for postponement of the personal hearing fixed on 26-12-2005. In spite of the same, the Commissioner passed the order on 28-12-2008 which was the subject matter of challenge in writ petition before Bombay High Court. It was in the above-mentioned set off facts that Bombay High Court held that there was a utter failure of the principles of natural justice and therefore, the impugned order was set aside and the assessee was given opportunity to file reply to the show cause notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the relevant period having been based on detailed analysis of all the records and materials made available by the department, and as the records disclosed the documents pertaining to non-existing transport company, coupled with the fact that the appellant had already paid a sum of Rs. 50,30,033/- out of the total amount of wrongly availed Cenvat credit, all these factors taken together prima facie satisfy us to refrain from exercising our discretionary power for waiver of the requirement of pre-deposit and to insist for due compliance of the obligation regarding pre-deposit. 110. It was also sought to be contended that the appellants had asked for cross-examination of the departmental officers before finalising the matter. Undispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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