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TMI Blog2011 (6) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearance Shri V.Chaudhary, Departmental Representative, for the respondent. Shri Amit Awasthi, Advocate, for the appellant. Per. Rakesh Kumar :- The facts giving rose to this appeal are in brief, as under :- 1.1 The appellant are manufacturers of leather shoes chargeable to Central Excise duty. The period of dispute in appeal No.E/1803/04 is 1999-2000 and in appeal No. E/1804/04 is 2000-01 to 2001-02. During the period of dispute, appellant were eligible for duty exemption under SSI notification No.8/99/CE, dated 28.02.99 and were not paying any duty claiming that their clearances during the financial year were within the exemption limit and being within the exemption limit, they had not taken Central Excise registration. Department conducted enquiries with regard to their turnover and it was found that their sales are mainly to Govt. departments and that the same during the year 1999-2000 were worth Rs.1,12,03,424/-. Their sale during the financial years 2000-01 and 2001-02 were worth Rs.1,08,40,256/- and Rs.1,25,99,136/- respectively. With regard to their sales turnover for the year 1999-2000, the appellant explained that their actual sales during that financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prietor Shri Shamshad Ahmad for recovery of allegedly short paid duty during 1999-2000 along with interest and imposition of penalty on the appellant firm under Rule 173Q(1) of the Central Excise Rules, 1944 read with section 11AC of Central Excise Rules, 1944 and on Shri Shamshad Mohd., under Rule 209A of the Central Excise Rules, 1944. Another Show Cause Notice dated 23.04.2002 was issued for demand of duty along with interest and imposition of penalty in respect of 2000-01 and 2001-02 period. 1.5. The first Show Cause Notice was adjudicated by Additional Commissioner by Order-In-Original dated 28.02.02 by which the duty demand of Rs.4,50,362/ was confirmed against the appellant under proviso to 11A(1), along with interest u/s 11AB and besides this, penalty of equal amount was imposed on the appellant firm u/s 11A and Central Excise Act, 1944. No penalty was imposed on Shri Shamshad under Rule 209A of Central Excise Rules. The second Show Cause Notice was adjudicated by the Additional Commissioner vide Order-In-Original dated 28.02.02 by which the duty demand of Rs.5,50,303/- was confirmed under proviso section 11A(1) of the Act along with interest u/s 11AB and besides this whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.12.10. Accordingly, in accordance with the directions of the Hon'ble High Court, the appeals stands restored and the same were taken on merits. 2. Heard both the sides. 3. Shri Amit Awasthi, Advocate, the Ld. Counsel for the appellant pleaded that so far as the Appeal No.1804/04 is concerned, the original adjudicating authority had adjudicated the Show Cause Notice without giving them an opportunity for personal hearing and without considering the submissions made by them in reply to the Show Cause Notice, that during 2000-01 and 2001-02, the value of the goods manufactured by them was well within the exemption limit and remaining goods sold had been purchased by them from M/s Super Flexo Leather Food Wear and M/s Jauhar Saddle Industries, that the submissions made in the Show Cause Notice were not considered by the adjudicating authority that the appellant's counsel vide letter dated 09.06.02 requested for adjournment of hearing before the adjudicating authority and though this letter was acknowledged, request for adjournment was totally ignored without any justification and matter was decided ex-parte, that Commissioner(Appeals) has also not considered their submissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rs.1,25,99,136/- respectively, that though in the reply to the Show Cause Notice, the appellant plead that their clearances during each of these years were within Rs.50 lakhs and the balance amount of goods have been purchased from other units, no such information was furnished to the investigating officer during investigation and in fact Shri Shamshad Ahmad, Proprietor of the appellant firm inspite of being summoned a number of times had not appeared before the investigating officers to give clarification in respect of sales turnover for the years 2000-01 and 2001-02 and that in view of this, there is no infirmity in the impugned order. 5. We have carefully considered the submissions of both the sides and perused the records. 6. As regards the Appeal No.E/1803/04 pertaining to 1999-2000 period, it is not denied that total sales to various Govt. departments during this period were Rs.1,12,52,261/- while the exemption was available only to the clearance of value upto Rs. 50 lakhs. The appellant's plea is that the clearances of the goods manufactured by them were worth Rs.31,95,792/- only and the balance quantity valued at Rs.80,07,632/- had been purchased from M/s MS Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, neither the request for adjournment was accepted now any reason not considering the request for adjournment was given in the adjudication order. On perusal of the adjudication order, it is seen that the same is an ex-parte order and it does discuss the defence submitted by the appellant in their reply to Show Cause Notice. Similarly, Order-In-Appeal also does not discuss the submissions made by the appellant in their reply to Show Cause Notice. In the proceedings before adjudicating authority as well as Commissioner(Appeals), the authorities have been guided by the appellant's past history and have concluded that during 2000-01 and 2001-02 period also, their actual turnover was in excess of the SSI exemption limit. Since there is violation of the principles of natural justice, the impugned order is not sustainable. The same is set aside and the matter remanded to the original adjudicating authority for de-novo decision after granting opportunity for personal hearing to the appellant and also taking into account the submissions made by them in their reply to Show Cause Notice. 8. In view of the above discussion, while appeal No.E/1803/04 is dismissed, so far as appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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