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TMI Blog2014 (12) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... s in filing C.M.A.SR.No.40650 of 2014. 4. The facts in both the cases are identical and therefore, we are inclined to set out the same in brief. The petitioner is engaged in the manufacture of chewing tobacco. It is alleged by the Department that the petitioner during the period 01.11.1996 to 07.06.2001, cleared the branded Chewing Tobacco in the guise of unbranded Chewing Tobacco without payment of duty. After investigation, a show cause notice was issued on 04.12.2001 and the supply of relied upon documents was completed on 14.2.2002. The Adjudicating Authority passed an order dated 29.10.2004 in Order-in-Original No.10/ADC/2004 stating that the noticee demanded some unrelied upon documents and even after supply, the reply was not submitted under one pretext or other. The noticee was directed to file their reply on 14.10.2003 and personal hearing was fixed on 02.12.2003, again on 18.5.2004 and finally on 16.7.2004. Relying upon the decision of the Allahabad High Court in the case of Modipon Ltd. V. CCE, Meerut reported in 2002 (144) ELT 267 (All), the Adjudicating Authority decided to proceed with the adjudication. The Adjudicating Authority observed that even though the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also desired that it be ensured that copies of orders of adjudication issued to the parties bear the signature of the adjudicating authority." 6. On remand, hearing was fixed on 12.7.2006. It is stated in paragraph 14 of the affidavit filed in support of the condone delay petition, that the petitioner had expressed his inability to respond to the notice unless and until all the unrelied upon documents are given together with relied upon documents in compliance with the direction of the Tribunal. Again the personal hearing was fixed on 23.8.2006 informing the petitioner to inspect the records as mentioned in the order of the Tribunal. The petitioner states that the Commissioner requested the petitioner to collect the entire set of documents in terms of the direction of the Tribunal from 4.10.2006 to 6.10.2006. In paragraph 15 of the affidavit, the petitioner states that the petitioner along with two consultants went to the office of the Commissioner for the purpose of collecting the unrelied documents and obtaining copies of documents relied upon. However, the petitioner states that the Assistant Commissioner informed them that after taking copies of the documents, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is office on 11.12.2008 and received copies of all the available documents as requested by them vide this office letter dated 11.12.2008 with the list of documents wherein the Nos. of pages and sheets have been furnished and the same were acknowledged by them. Shri.K.Ananthakrishnan, Partner of V.K.P.K.Ammayappan & Bros. and P.K.Kutralingam Partner of V.K.Palappanadar & Co., who also visited this office were informed vide letter dated 11.12.2008 that all the originla unrelied upon documents have been handed over to Shri.K.Ammaiyappan, Proprietor of V.K.Palappa Nadar Firm on 7.2.2002 itself as acknowledged by him." 9. Thereafter, personal hearing was fixed on 07.01.2009 before the Joint Commissioner. It appears that the petitioner did not appear for the personal hearing and they sent a letter dated 05.1.2009 requesting for supply of documents not yet supplied to them and for return of non relied upon documents. Being oppressed by the conduct of the party, the Adjudicating Authority, proceeded to go ahead with the adjudication. 10. Accordingly, the de-novo order of adjudication was passed on 17.2.2009, in which the conduct of the petitioner could be seen from paragraph Nos.7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 260 documents vide this office letter C.No:V/24/15/283/2001-ADJ. dated 11.5.2004 on their request. 9) After providing copies of the documents as required by the parties, a letter dated 23.2.2007, was sent to the parties requiring them to appear for personal hearing before the Additional Commissioner, on 7.3.2007 at 1430 Hrs. For this, the parties vide their letter dated 5.3.2007, requested for cross examination of the mahazar witnesses, deponents and the investigating officers. They were intimated vide this office letter dated 15.3.2007 by the Additional Commissioner, to inform a convenient date before 30.04.2007, for cross examination of the mahazar witnesses as required by them. However, the parties neither responded for the above personal hearing nor intimated a date for cross examination. 10) V.K.Pallappa Nadar Firm vide their letter dated 6.2.2008 requested for copy of approval for issue of Show Cause notice given by the Commissioner of Central Excise for which a reply was sent to them vide this office letter C.No:V/24/15/06/2006-Adjn. dated 3.4.2008 informing that the Commissioner's approval letter is not a relied upon documents and hence the same cannot be supplied as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents by Post, without availing the opportunity to peruse the documents. They did not appear for P.H. 19-04-2004 Copies of 78 transport documents were supplied and the party was informed that the Commissioner s Approval letter is not as relied upon document. And[SECOND] P.H. was fixed as all the relied upon documents have been supplied and reply to SCN was requested 28-04-2004 Party claimed that the 78 documents supplied were the ones already available with them. They asked for copies of 271 TRMS transport documents and insisted for the supply of Commissioner s approval letter. 11-05-2004 Attested copies of 260 TRMS transport documents were supplied to the assessee by RPAD. It was reiterated that Commisssioner s approval letter was not relied upon document and reply to show cause notice was requested 22-05-2004 & 11-06-2004 Party requested for the supply of copies of the remaining 11 transport documents. He again insisted for the supply of Commissioner s approval letter. 25-06-2004 [THIRD] P.H. was fixed and reply to show cause notice was requested 08-06-2004 [recd on 09 -07-2004] M/s. V.K.P.K. Aruvithurai & Brothers, the second party to the SC asked for the supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on document, it will not be supplied. 08-04-2008 Intimation of PH fixed on 22-04-2008 by ADC 16-04-2008 The assessee informed that they would attend the personal hearing only after receipt of all relied upon documents and non relied upon documents and on cross examining the mahazar witnesses, deponents of the statements and the investigating officers. 10-07-2008 Corrigendum to SCN for change in adjudicating authority intimated to the parties. 11.07.2008 Parties were requested to appear for P.H. on 16.07.2008 before the Joint Commissioner. 16-07-2008 Letter was sent to the Parties asking them to appear for P.H. on 23.07.2008 28-07-2008 Another letter sent requesting them to appear for P.H. on 13.08.08. 11.08.2008 Detailed reply to CESTAT sent with copies of all acknowledgement given by Parties for receipt of documents 13.08.2008 Party s letter dated 06.08.08 received stating that they will not appear for P.H. before the Joint Commissioner. 27-08-2008 Review Section was asked to request CESTAT to dispose the case early as the adjudication was pending for more than one year and against PAC s recommendation. 15.10.2008 As a last chance, a letter sent fixing P.H. on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 11A(1) of CEA, as demanded in show cause notice dated 4.12.01 from M/s.V.K.Pallappa Nadar firm, Dhalavaipuram. 2. I impose a penalty of Rs. 38,78,141/= (Rupees Thirty eight lakhs seventy eight thousand one hundred and forty one only) on M/s.V.K.Pallappa Nadar Firm Dhalavaipuram under Section 11AC of Central Excise Act 1944. 3. I impose a penalty of Rs. 1,00,000/- (Rupees one lakh only) on M/s.V.K.Pallappa Nadar firm, Dhalavaipuram under Rule 173Q of erstwhile CER, 1944 and Rule 25 of Central Excise Rules. 4. I demand interest from M/s.V.K.Pallappa Nadar firm, Dhalavaipuram at the appropriate rate under Section 11AB of Central Excise Act, 1944. 15. In paragraph No.18 of the affidavit filed in support of the condone delay petition, the petitioner relied upon the Joint Commissioner's letter dated 03.12.2008 (not enclosed). In paragraph 19 of the affidavit, the petitioner relied upon the letter of the Superintendent, Adjudication dated 17.12.2008 (not enclosed). The petitioner relied upon the letter dated 05.01.2009 sent by the petitioner (not enclosed) to impress this Court that there has been gross violation of principles of natural justice, whereas, as we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directions of the Tribunal. We see no necessity whatsoever to entertain these applications directly which have been filed before the Tribunal bypassing the normal channel of appeals provided under the statute. Accordingly, both the applications are dismissed. 17. This order is now the subject matter of appeal, in which condone delay application has been filed, in CMASR.No.40650 of 2014 interalia contending that the Tribunal failed to exercise his jurisdiction to get its order complied with. 18. The issue before us is as against this order of the Tribunal dated 16.12.2009 in Miscellaneous order Nos.642 and 643 of 2009, appeal has been sought to be filed before this Court and for that there is a delay of 1409 days. In the affidavit filed, the petitioner states that they pursued the matter by way of appeal before the Commissioner (Appeals) as directed by the Tribunal in Miscellaneous order No.642 and 643 of 2009 dated 16.12.2009, which part of the order we have already set out, which went against the petitioner on the ground of limitation. That order of the Commissioner (Appeals) dated 31.1.2011 in Order in Appeal No.43-45 of 2011 was taken on appeal before the Tribunal. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period." It is well settled that the learned Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the period as prescribed under proviso to Section 35(1) of the Act, 1944. Admittedly, the appeals were filed beyond the stipulated period under proviso to Section 35(1) of the Act, 1944. Hence, we find that there is no need to discuss the matter on merits as the appeals were dismissed as time-barred by the Commissioner (Appeals). 8. In view of the above discussions, we do not find any infirmity on the order of the Commissioner (Appeals). Accordingly, all the appeals are dismissed and stay applications are disposed of. 19. As against this order of the Tribunal dated 27.02.2013, another appeal has been filed with a delay of 199 days in C.M.A.SR.No.40653 of 2014. 20. We are now concerned with the issue of condonation of delay in filing the appeals. The reason for the delay, though confusing in various paragraphs of the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's demand for duty, penalty and interest. 22. The present Petitions for condonation of delay appear to be a dilatory tactics and there is no bona fide reason for the inordinate unexplained delay of 1409 days. In any event, the explanation given appears to be self-serving and to defeat the adjudication process. The time of the Original Adjudicating Authority, the Appellate Tribunal and this Court is wasted in this process, which we find lack bonafides on the part of the petitioner. 23. The delay of 199 days in filing the appeal as against the order of the Tribunal dated 27.2.2013 also is based on the same plea and none of the documents relied upon in the typed set has been enclosed and the delay has been casually stated in paragraph 25 to 28 of the affidavit, which reads as follows: "25. The petitioner further submits that aggrieved by the same the petitioner filed an appeal before the Tribunal along with application for stay under Section 35F of the Act. The appeal was listed for hearing on various dates viz., 21.11.2011, 18.04.2012, 21.08.2012, 21.02.2013 and finally the appeal came to be heard and was dismissed vide order dated 27.2.2013 in final order No.40078-40080/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay the process of recovery. We are constrained to dismiss both the petitions with cost. 25. Learned counsel appearing for the petitioner persuaded this Court to accept his plea that there was bona fide in this case, but from the narration of facts as above, we find that the conduct of the petitioner in the Original proceedings, before the Tribunal and before this Court is one of deliberate defiance only to delay the process of adjudication and recovery. The valuable time of the Adjudication Authority and the Tribunal has been wasted in the Miscellaneous petition without any just or reasonable cause to serve the ends of the petitioner who did not choose even to file a reply to the show cause notice issued at the first instance at any point of time. 26. We are pained to note that the details of the various proceedings that has been recorded by the Adjudicating Authority, which we have already extracted, give us no other choice except to dismiss both the petitions and impose cost on the petitioner. Taking note of the quantum of duty and penalty and interest and the number of years of litigation, we are inclined to impose a cost of Rs. 1.00 lakh. The learned counsel pleaded several ..... X X X X Extracts X X X X X X X X Extracts X X X X
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