9911796707
TMI Blog2017 (7) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... from the petitioner Unit, in the fitness of things the authorities should have allowed cross-examination of the above two persons to test the veracity of their statements. By not doing so, in our considered view there has been violation of principles of natural justice. While filing the interim show cause under Annexure-25, the petitioner has wanted to cross-examine Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo before filing their final reply. Since the same was not acceded to, in our considered view, the entire decision making process has been vitiated. This is because in case during cross-examination the petitioner is able to demolish the statements of Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo then the entire foundation of the case of the department would collapse. If the testimony of witnesses is discredited then there would no material for the department on the basis of which they can justify their action and accordingly allowed the appeal. Taking a cue from that, this Court has no hesitation in quashing the impugned order under Annexure-1, which, this Court hereby does. Further, this Court remands the matter back to the opposite party directing him to give oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars in the prescribed Form-I, which include inter alia the number of single track packing machine, the number of multiple track packing machine and number of multiple track multiple line packing machines installed in the factory, which the manufacturer intends to operate. On receipt of such declaration, the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, shall after making such enquiry as required including physical verification, approve the declaration and determine and pass order concerning the annual capacity of production of the factory in accordance with the Rules . In case the manufacturer wishes to make subsequent changes, it is required to file fresh declaration at least three working days in advance to the authorities. In tune with the above requirement, the petitioner filed the requisite declaration in Form-I during the relevant period before the Assistant Commissioner of Central Excise, Sambalpur-II, Division clearly indicating the number of single track packing machines available/installed in the factory and the number of such machines, which it intends to operate in its factory for production of notified g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. After the completion of investigation, the department issued a show cause notice dated 18.9.2012 under Annexure-20 series. The petitioner vide letter dated 25.12.2012 (Annexure-21) requested the opposite party for supply of certain documents and more particularly the photo copy of the outer packet which contained Safal Gutkha pouches of MRP ₹ 5/-. The Assistant Commissioner (Preventive), Central Excise, Bhubaneswar vide letter dated 27.2.2013 under Annexure-22 series supplied photo copy of the Gutkha pouches of MRP ₹ 5/- along with other documents. However, since the photo copy of outer packet in which the pouches were packed was not made available to the petitioner, on 14.3.2013 (Annexure-23), the petitioner again requested the opposite party to supply a copy of the outer packet in which the pouches were packed. When the above noted outer packet was not supplied to the petitioner, the petitioner reiterated its prayer on 3.12.2013 vide Annexure-24. Ultimately, in absence of the photo copy of the outer packet containing pouches, the petitioner submitted its interim reply on 12.12.2013 vide Annexure-25 praying for vacating the show cause notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the part of the labour supervisor. Since those pouches were released to the market during May, 2011, therefore, those goods could not be recalled. According to learned Senior Counsel for the petitioner, the said letter further made it clear that M/s. Kay Pan Masala Pvt. Ltd., Ghaziabad was still left with 237 Kgs. of said wrongly printed pouches. With regard to print media advertisement, the petitioner took the stand that the said advertisement was never released by the petitioner. With regard to advertisement in electronic media, the petitioner took the stand that since M/s. Kay Pan Masala Pvt. Ltd., Ghaziabad started marketing of Safal brand Gutkha of MRP ₹ 5/-, the petitioner also thought that it could also manufacture and market Safal brand Gutkha of MRP ₹ 5/-. Accordingly, it gave advertisement in electronic media in July, 2011. As the response was not encouraging, the petitioner did not proceed further with the idea and dropped the same. In any case, the petitioner took the stand that advertisement ipso facto did not imply manufacture of Safal brand Gutkha pouch of MRP ₹ 5/-. Besides the above stand the petitioner also took a number of alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atsoever from the factory premises showing manufacture and clearance of Safal brand Gutkha of MRP ₹ 5/- during search and that mere advertisement cannot imply manufacture of the disputed goods; however, he mainly attacked the impugned order under Annexure-1 on the ground of violation of principles of natural justice. According to him the impugned order was/is legally vulnerable as no opportunity was granted to the petitioner to cross-examine the above noted two persons, whose statements on the facts and circumstances constitute the backbone of the case of the revenue. If the version of these two persons are demolished in the cross-examination, then the case of the department would collapse. In such background, he prayed that the impugned order be quashed and the opposite party be directed to give an opportunity to cross-examine the above noted two persons before passing order afresh. In this context, he relied on a decision of the Supreme Court in the case of Andaman Timber Industries vrs- Commissioner of C. Ex., Kolkata-II, reported in 2015 (324) E.L.T. 641 (S.C.). 9. Per contra, Mr.Choudhury Satyajit Misra, learned Senior Standing Counsel appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examine the persons, who have made statement against it at the very initial stage like the present case. Therefore, it appears that in the facts and circumstances of the case, there the Supreme Court rejected the plea of the petitioner praying for cross-examination. But here as would appear while filing the interim show cause under Annexure-25, the petitioner has wanted to cross-examine Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo before filing their final reply. Since the same was not acceded to, in our considered view, the entire decision making process has been vitiated. This is because in case during cross-examination the petitioner is able to demolish the statements of Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo then the entire foundation of the case of the department would collapse. In such background, the opposite party ought to have permitted cross-examination of the above noted two witnesses. In this context, we are satisfied that the decision cited by Mr. A.Hidayatullah, learned Senior Counsel in Andaman Timber Industries (supra) applies in all fours to the present case. There also the statement of the witnesses, whom Andaman Timber Industries (supra) wanted to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
