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TMI Blog2010 (11) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... violators of provisions of Central Excise Act, 1944.- appellants has produce end-use certificates were obtained by the concerned melting units, the matter remanded to rule out unreliability . Prima facie, from the contentions of the appellants we are unable to find any balance of convenience tilting in their favour, who caused prejudice to themselves following dilatory tactics to avoid consequence of adjudication - it would be appropriate to send the matter back without keeping the matter pending with Tribunal. Hence, to protect interest of Revenue,direct the appellants to deposit 25% of the customs or excise duty demands - Subject to compliance with the direction, the requirement of pre-deposit of the balance amounts, including penalties shall stand waived and all the appeals shall stand remanded for fresh decision to the adjudicating - Fresh orders will pass after granting reasonable opportunity of hearing to the appellants. - C/609, 613, 876, 878, 610, 611, 628-630, 875, 877, 703-704, 707, 723-724, 774-777, 779-781, 1014, 607-608, 612, 656, 851-852, 893-895, 1013, 787-790, 794, 793, 971, 1015-1016, 661-662, 683-684, 705-706, 819, 686-687, 879-880, 770-772, 1017, 784-786, - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajendra P. Singla C/780/2009 E/875/2009 Global Ispat Ltd. C/781/2009 E/879/2009 B. Raghavendra C/1014/2009 - Malchand Ojha 4. 08/CC/Goa/Cus./2009 dated 25-3-2009 C/607/2009 - Joseph Philip C/608/2009 - Rajiv Rai C/612/2009 - R.K.K.R. Steel C/656/2009 - S. Ravisankar C/851/2009 E/936/2009 Naresh Chandra Agarwal C/852/2009 E/937/2009 Global Ispat Ltd. C/893/2009 E/962/2009 Shivam Ispat P. Ltd. C/894/2009 E/961/2009 Rajendra Prasad Singla C/895/2009 E/963/2009 Shri Balaji Rolling P. Ltd. C/1013/2009 - Malchand Ojha 5. 09/CC/Goa/Cus./2009 dated 25-3-2010 C/787/2009 E/882/2009 Karthik Inductions Ltd. C/788/2009 E/886/2009 Shri Balaji Rolling P. Ltd. C/789/2009 E/888/2009 B. Raghavendra C/790/2009 E/887/2009 Rajendra Prasad Singla C/794/2009 E/891/2009 Naresh Chandra Agarwal - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of 30-11-2010. 4. In respect of three of these appeals miscellaneous applications have been filed for condonation, of delay. These applications are allowed for the reasons stated in the same and also for the reason that these applications are not opposed by the department. 5. Shri Rawal, learned Sr. Advocate appearing in respect of 8 appeals states that on the last date of hearing on 10-6-2008, the appellants could not be represented by their counsel but a request was duly made for adjournment of the hearing. However, though the adjudicating authority took nine more months to finally pass the adjudication order, he did not grant adjournment fixing a fresh date of hearing to the appellants in these eight cases. As such, there has been a violation of principles of natural justice in respect of his clients. On a query from the Bench he states that had the appellants been given a chance to appear before the adjudicating Commissioner, he would have argued before him that the end-use certificates given by the excise authorities have not been cancelled and hence no demand can be sustained. He would also have argued in respect of conditional notifications requiring post-importation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI authorities has proved that the impugned goods after import from Chennai were diverted and sold and they never reached the manufacturing units in the Goa jurisdiction from where end-use certificates have been obtained and produced. The certificates given by the Central Excise authorities were based on the records fabricated by the appellants have no value as the very basis of such certificates are fabricated documents. 9. The learned JCDR states that the adjudicating Commissioner has granted hearing on three different dates, on 28-8-2007, 11-12-2007 and on 10-6-2008. One of the advocate representing several appellants, namely, Shri V.M. Doiphode, kept writing to the adjudicating Commissioner with copies to Chief Commissioner maligning the adjudicating Commissioner with a view that he should recuse himself from completing the adjudication. The notification authorising the Commissioner in Goa were received on different dates, the last notification was issued on May, 2007 and after dealing with voluminous evidence and the replies furnished by the appellants including the records of personal hearing kept by him, the adjudication order has been passed in March, 2009. The order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s A Notification No. 17/2001-Cus., dated 1-3-2001 were supplied to units for the purpose of melting and whether the purpose for which import was made as condition precedent in terms of that notification was achieved. It was found that the goods imported were not used for the purpose that was imported. The importers fabricated their records in connivance with the steel melting units to show that the imported goods were moved to the latter while the goods imported by availing notification benefit were found to be diverted without reaching the claimed destination. Evidence reveal that the goods never reached melting units at the respective destination nor even there were any evidence demonstrating the movement of goods for which the importers were brought to charge. They led no cogent evidence to their defence. The investigating authorities made thorough investigation to find out whether the claim of the appellant-importers was correct. They did not find at all movement of the goods from the place of import. They did not find receipt of the goods at the destination claimed. The authorities enquired with the transporters and also the respective commercial tax check gates through which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, 1944. While the importers violated the conditions of the Notification aforesaid under Customs Act, 1962 and also other applicable provisions under that Act, the melting units extended their hands to commit breach of law in recording the spurious transactions which were not genuine violating provisions of Central Excise Act, 1944 making undue claim of input credit. The adjudicating authority found that there were echoing evidence against the importer and the melting units and the persons as well as concerns connected thereto who connived with each other to defraud Revenue. 15. The materials on record further exhibit that when the adjudication proceeded, the authority was made to halt making allegation of bias against him. It appears that when extensive examination of evidence was made by the adjudicating authority, some of the appellants were apprehensive that the adjudication may go against them in this batch of appeals. Such allegation turned out to be baseless when the appellant failed to succeed against their complaint to the Chief Commissioner in this regard. They also did not seek redressal before courts of law when they failed to succeed before Chief Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival contentions. The case involves fraudulent use of the customs duty exemption by diverting the impugned goods imported availing concessional rate of duty which have not been put to the required use. There is no argument against this finding of the adjudicating Commissioner by any of the parties. In such a case, even if the case required to be remanded for consideration by the adjudicating authority, there is ample justification to put the appellants to some amount of pre-deposit since a huge amount of public revenue has been lost and there is already a delay in finalising the case. Shri Rawal, learned Senior Advocate, in respect of whose clients we find lapse on the part of the adjudicating Commissioner not granting adjournment and fresh date of hearing, has been fair to offer pre-deposit of about Rs. 8 lakhs in addition to the deposit of Rs. 12 lakhs already made to protect interest of Revenue. In respect of other appellants represented by other advocates, we find that they have been granted hearing before passing the impugned order. But the adjudication order does not expressly refer to the credit entries in the RG 23 register and tallying of the same with the amounts figurin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. A/254 to 259/09/EB/C-I dated 11-8-2009. 14. We have heard both sides. A specific query was put to the Ld. Departmental Representative as to whether the documents seized from the premises of the Appellants M/s. Krishna Marketing and M/s. Jay Enterprises, under the aforesaid Panchanamas have been supplied to the ICCONOL Petroleums Private Limited. We were informed that the same have been provided to the Appellants; however, no proof for the same was submitted. The learned Advocate appearing for ICCONOL Petroleums Private Limited on the other hand has showed us various letters written by the representatives of ICCONOL Petroleums Private Limited asking for the documents seized under various panchanamas and relied upon by the adjudicating authority while conforming the impugned demand. 15. After taking into consideration the facts and circumstances of the present case and since the issue relates to the alleged clandestine removal, we direct ICCONOL Petroleums Private Limited to deposit Rs. 20,00,000.00 (Rupees Twenty Lakhs Only) towards payment of duty and further furnishing a bank guarantee for Rs. 5,00,000.00 (Rupees Five Lakhs Only) in favour of the Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to lead evidence to contradict the evidence gathered by the Revenue. When we found that the interest of Revenue weighed heavier we are unable to accede to the request of the appellants to hear the appeals sacrificing interest of Revenue. We do appreciate that show-cause notice is the foundation of adjudication and civil and evil consequences flow from that. For such reasoning these appellants deserve an opportunity of hearing on the issue of denial of CENVAT credit. But finding the dilatory tactics of the appellant who caused the proceedings delayed, it would be appropriate to send the matter back without keeping the matter pending with Tribunal. 22. Accordingly, to protect interest of Revenue, we direct the appellants to deposit 25% of the customs or excise duty demands (less the amounts already paid), as the case may be, confirmed against them within eight weeks from today and to report compliance on 7th March, 2011 to the adjudicating Commissioner to fix date for fresh hearing. Subject to compliance with the above direction, the requirement of pre-deposit of the balance amounts, including penalties shall stand waived and all the 106 appeals shall stand remanded for fresh dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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