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TMI Blog2013 (1) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... nd seized records including pocket diaries maintained by the Directors. Consequently, statements of the Directors were recorded who admitted to the act of clandestine manufacture and clearance of goods and on completion of investigation, a SCN was issued to M/s. ARMPL and their Directors on 20-10-2008. Subsequently, the demand was confirmed by the ld. Commissioner and penalties were imposed on M/s. ARMPL and on the Directors. 3. The ld. Consultant appearing for the applicants/appellants at the outset submitted that there has been a serious violation of principles of natural justice in passing the impugned order as they were not allowed adjournment of the personal hearing as requested vide their letter dated 26th March, 2010 but the adjudicating authority decided the case ex-parte. Further, he has submitted that though the Applicant have requested through letter, dated 22/26th March, 2010 for supply of un-relied upon documents, the same were not handed over to them. The ld. Consultant, however, fairly concede that though the SCN was issued to them on 20-10-2008, the Applicants have not taken any steps to file their reply till the receipt of hearing intimation. On repeated que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to their request on 12-3-2010, the hearing was adjourned to 22-3-2010. The ld. A.R. further submitted that in their letter dated 12th March, 2010 the applicant M/s. ARMPL had acknowledged receipt of copies of seized records and documents and did not furnish the reason of non supply of documents as a ground for non filing of reply to the SCN. In their letter dated 22nd March 2010 they raised the issue of non receipt of unrelied upon documents for the first time but did not mention that they were not handed over these documents by the Department to them in spite of their approach to the concerned officer as mentioned in the SCN. He has further submitted that on 22nd March, 2010, the ld. Adjudicating Authority again adjourned the personal hearing to 29-3-2010. To the said hearing the applicants/appellants chose to respond through their Consultant informing that said Consultant was busy in 4/5 cases on 29-3-2010 and the unrelied upon documents were not received by them resulting in non-filing of reply to SCN. They sought further time and requested to fix the hearing in April, 2010. 6. The ld. A.R. further submitted that the Adjudicating Authority has accorded ample opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the period October, 2006 to 9th April, 2007. He has submitted that there were enough evidences, based on which the ld. Commissioner had to come to the finding that the Applicants had indulged in clandestine manufacture and removal of goods from their factory. 8. Heard both sides and perused the records. We find that the case against the Applicants/Appellants is clandestine manufacture and removal of goods from their registered factory premises without payment of duty. Pursuant to the raid of different premises and on completion of investigation the SCN was issued to the applicants/appellants on 20-10-2008 listing out the allegations and the evidences on the basis of which the Notice was issued. In the said SCN, it is mentioned that the applicants/appellants are required to reply to the allegations in SCN within a period of 30 days and attend personal hearing fixed thereof. Further, at para 14 of the said SCN, it is mentioned as : "Documents relied upon for the purpose of charges made in this show cause notice, including the ones herewith enclosed as per Annexures may be inspected by the Noticees with prior approval of the adjudicating authority in this respect. The non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total amount of duty confirmed and penalty imposed as pre-deposit without hearing the appellant; in Alfrey Bird & Co. (I) Pvt. Ltd., the petitioner filed a writ petition before the Madras High Court that the classification was changed without affording an opportunity to the petitioner in that case; in Grasim Industries case, the Dy. Commr. of Customs under a special drive finalized the assessment and passed order to clear the backlog of matters without affording opportunity to the assessee in that case; in Sun Flower Remedies case, the classification of the product Shower to Shower Prickly Heat Powder was determined as per 3303-3304 and levying of Central Excise Duty of Rs. 5.1 crores without affording an opportunity to the noticee to substantiate their claim and no notice was issued to them before passing the impugned order. 12. On the other hand, we find that the judgments cited by the ld. A.R. are more relevant to the facts in issue. The Hon'ble Punjab & Haryana High Court in the case of Harjinder Pal Singh's case (supra) while the Hon'ble High Court in answering the question whether adequate opportunity of hearing was granted before deciding the case, has Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. 35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice." 14. The role assigned to this Tribunal in the system of Administration of justice relating to excise, customs and service tax issues is that of being the final fact finding body, hence, after hearing the ld. A.R. on the merits of the case, we find that this is a case of clandestine removal of goods manufactured and cleared by the appellant without accounting for the manufactured goods in their statutory excise records or in their Books of Accounts and also without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture and removal of goods without payment of duty. We also agree with the ld. A.R. that it is the basic principle of Rule of evidence that facts admitted need not be proved. Since at the initial stage of investigation when the Director's statements were recorded to ascertain the correctness of entries made in the diary, the Directors admitted the said fact of manufacture and clearances of excisable goods without payment of excise duty in a clandestine manner. The said statements were recorded under Section 14 of the CEA, 1944 and undoubtedly admissible in evidence had been rightly relied upon by the adjudicating authority. The applicants/appellants had submitted that their factory had been closed since 2009 and submitted a copy of the balance sheet showing that there is a loss to the tune of Rs. 4,20,789/- during assessment year 2011-2012. However, we find that the applicant had net current asset of Rs. 3,099,3,572/- as on 31-03-2011. Thus, we find that the applicants/appellants could not able to make out a prima facie case in their favour for total waiver of pre-deposit of the dues. In these circumstances keeping in view the interest of Revenue and also the principle of law re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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