9911796707
TMI Blog2011 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... . T.C. Nair, Ms. Aparna, Advocates) Respondent: (Represented by: Mr. V.K. Singh, SDR) Per: P.G. Chacko 1.These appeals are directed against the Appellate Commissioner's order sustaining, with certain modifications, the order passed by the original authority in adjudication of 22 show-cause notices. 2. One of the appeals is by the assessee who was, during the period of dispute, engaged in the manufacture of various types of paper. The three products figuring in this case are (i) Lacquered Release Paper, (ii) VPI (Anti-corrosion) Paper and (iii) Poly-coated (Plastic-coated) Paper. The assessee classified the first two products under SH 4811.90 and the 3rd one under SH 4811.30 of the First Schedule to the Central Excise Tariff Act during the period of dispute (1.4.1989 to 28.2.2000). They were not registered with the department upto 8.4.94. They filed Classification Lists with effect from 1.3.94 till 1.4.95 classifying the above products in the aforesaid manner. With effect from 12.5.95 till 28.2.2000, they filed Classification Declarations classifying the said products, more or less, in the same manner. The department issued 22 show-cause notices covering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised in the appeal before the Commissioner (Appeals). The assessee also applied to the appellate authority under Section 35F of the Central Excise Act for waiver of pre-deposit of the dues adjudged against them. The appellate authority disposed of that application by directing the assessee to pre-deposit the entire amount of duty plus an amount of Rs 5 lakhs towards penalty. This direction for pre-deposit was challenged by the assessee in a writ petition before the Hon'ble High Court. The Hon'ble High Court, after noting the submission of the writ petitioner that 21 out of 22 show-cause notices had been adjudicated upon in violation of the principles of natural justice, modified the Appellate Commissioner's direction for pre-deposit. Accordingly, the writ petitioner (the assessee) was required to pre-deposit only 25% of the duty amount vide Plyoff Packaging Pvt Ltd vs Union of India 2002 (142) ELT 31 (Bom). Still aggrieved, the assessee approached the Hon'ble Supreme Court in Civil Appeal No. 4347/2002 which was disposed of by the apex court with a direction to the appellant/assessee to pre-deposit a sum of Rs 4,82,280.11 with the first appellate authority under Section 35F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed by the assessee, as also in support of exemption claimed by them under various Notifications. SSI exemption was also claimed for the period of dispute. But these submissions/contentions went unheeded when the case was adjudicated by the Additional Commissioner. Had the assessee been given a reasonable opportunity of being heard against the demand of duty and other proposals raised in the 21 show-cause notices, they would have been able to substantiate their case on the strength of the available evidence, legal provisions and case law. This opportunity was, virtually, denied to the assessee. In the circumstances, it is suggested that the case be remanded to the original authority for de novo adjudication. 7. The learned counsel has placed on record compilations of documents, excerpts from the Central Excise Tariff, Explanatory Notes to HSN, Exemption Notifications etc. A separate compilation of the 22 show-cause notices and replies thereto has also been filed. The documents compiled by the learned counsel include copies of declarations filed under Rule 174 of the Central Excise Rules, 1944, Classification Lists/Declarations filed under Rule 173B, test reports of the Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nti-corrosion Paper was coated with plastic. It is further pointed out that the finding to this effect recorded by the learned Commissioner (Appeals) has not been challenged. It is further pointed out that the Chemical Examiner.s test reports on a sample of the Anti-corrosion Paper is in favour of the assessee. The learned counsel refers to the test report dated 16.2..98 on Central Excise sample No. 2/98 covered by test memo No. 2/98 and Classification List No. 1/97-98. 11. Having heard both sides and considered their submissions, we have found this case fit for remand to the original authority. It is not in dispute that the assessee was not given any opportunity of being heard against 21 out of 22 show-cause notices. The adjudicating authority heard them only against the Collector's show-cause notice which was issued on 2.5.94.This aspect was also noted by the Hon'ble High Court and the Hon'ble Supreme Court in the cases cited before us.Therefore, it cannot be gainsaid that the adjudicating authority passed the Order-in-Original in gross violation of the principles of natural justice inasmuch as it took up the aforesaid 21 show-cause notices also for adjudication behind the bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o receive a copy of the Chemical Examiner's report on the sample drawn on 20.9.1994. This report should also be furnished to them. For all these reasons, the case requires to be remanded for fresh decision. It is true that the learned Commissioner (Appeals) did not have the power of remand. But we have this power which has to be exercised for de novo adjudication of the case. 12. However, we should also take note of the fact that one finding recorded by the Commissioner (Appeals) against the Revenue is not under challenge in the appeal filed by them. The learned Commissioner (Appeals) clearly found that it had not been alleged in the show-cause notice that the Anti-corrosion Paper was coated with plastic. It was on the basis of this finding that the said item was excluded from the purview of the demand of duty. Needless to say that this part of the decision of the learned Commissioner (Appeals) shall stand. In other words, it would be beyond the scope of de novo adjudication to demand any duty from the assessee in respect of Anti-corrosion Paper. In respect of the other products, the original authority shall take fresh decision on all the relevant issues for the relevant period ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
