2017 (5) TMI 869

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..... ct, the matter needs to be remanded to the original adjudicating authority - appeal allowed by way of remand. - Appeal No. E/525 to 528/06 - - - Dated:- 22-3-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri V.S. Sejpal, Advocate Shri S.K. Babaladi, Advocate for Appellant Shri Sanjay Hasija, Supdt. (AR) for Respondent ORDER Per Ramesh Nair The appellants are engaged in manufacturing process of cotton fabrics as well as manmade fabrics falling under Chapters 54 55 of the Schedule to Central Excise Tariff Act, 1985. A show-cause notice No. V/PI/156/90/B-II/2548 dated 27.9.1990 was issued seeking to recover Central Excise duty on the suppression of production and removal of 75,72,897 s .....

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..... tine removal non-payment of duty was alleged In respect of 940 gate passes only' . not in respect of all the invoices issued by the noticee company. If it were the intention of the investigation to cook up the story on 'pure imagination', as contended by the: notlcec, the demand could have very well been extended to all the gate passes of the. noticee during the mateiral period. The fact that the document did not do so and restricted the demand to the gate passes where such an evasion occurred, based on the decimal theory, clears the air with regard to any allegation of mala fide intention on the port of the investigation. On the contrary, the unwarranted demand of the noticee for the return of some 1500 job curds / instructi .....

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..... ow-cause notice is not correct. We are of the view that it is not the adjudicating authority to suo motu decide that whether the documents are useful for the appellant for making the defence but it is the appellant, who has to make the defence on the basis of which they feel it is necessary. Even though the case is prima facie against the appellants, but as per the requirement of the principles of natural justice every assessee must be given sufficient opportunity to defend his case. In the present case, when the assessee is requesting to release the documents withdrawn under Panchanama, it is incumbent on the adjudicating authority to return the documents particularly when the same is not relied upon. Even if it is relied upon, the documen .....

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