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TMI Blog2017 (9) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of all relied upon documents by the Revenue, the proceedings against the assessee have rightly been set aside by the Tribunal on the ground of denial of natural justice. Appeal allowed - decided in favor of appellant. - E/1593-1595/2008-DB - No.A/12588-12590/2017 - Dated:- 15-9-2017 - Dr. D. M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) For the Appellant : Mr. Nirav Shah (Advocate) For the Respondent : Mr. G. Jha (A.R.) ORDER Per: Ashok K. Arya These three appeals have been filed by BTI Textiles Pvt. Ltd. on behalf of the three original noticees namely i) M/s Babu Textiles Industries ii) M/s F.B. Textiles iii) M/s N. B. Textile Engg. These appeals are against order in original No.164/2008 dated 22.09.2008 whereunder inter alia Central Excise duty of ₹ 6,36,896.02/- along with penalties of ₹ 2 lakh have been confirmed against M/s Babu Textiles Industries and further penalties of ₹ 25,000/- each have been imposed on M/s FB Textiles and N.B. Textile Engg. on whose behalf, the appeal has been filed by M/s BTI Textiles Pvt. Ltd. (Rakhial Road Ahmedabad). The main prayer made in the appeals are that the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.08.1998 remanded the case back to the adjudicating authority saying that adjudication order did not give separate finding in respect of two units, which were ordered to be clubbed with M/s Babu Textile Industries; particularly with reference to allegation in the Show Cause Notice that there was mutuality of financial interest among these firms. ix) The case accordingly was taken up for fresh adjudication. Commissioner of Central Excise (Ahmedabad-I) vide order in original No. 08/2007 dated 20.08.2007 held that all the three units were under the administrative control of Sh. Babu Bhai Alibhai Shaikh and M/s Mohmed Yunus Bhai Shaikh and has proved beyond doubt that M/s F.B. Textiles and M/s N. B. Textile Engineer were not in a position to manufacture complete machinery as no furnace etc. was installed in their premises. It was inter alia held that M/s N.B. Textiles Engineer and M/s F.B. Textile were created only for availing wrong exemption under Notification 105/1980 dated 19.06.1980, No. 77/1983 dated 01.03.1983 and No. 77/1985 dated 17.03.1985 and figures of clearances shown under the name of these three firms are to be clubbed for charging Central Excise duty. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of relied upon documents so that they could properly represent their cases. The Tribunal vide its order dated 09.05.2008 (in central Excise appeal No.130-134/2008) remanded the matter to Commissioner for fresh decision, after supplying the documents and after giving the appellants an opportunity of personal hearing. However we find that the Revenue admits that such documents are not available with them also. Thus relied upon documents have not been made available to the appellant except copy of the Show Cause Notice, earlier order-in original and earlier Tribunal's order. 5.1 When this is a unique case where relied upon documents are not available either with the Revenue or with the appellants, we are unable to understand how could the proceedings progress and the liability of duty of Central Excise and the penalties against the appellants be sustained. The Hon ble Gujarat High Court in the case of CCE C. Vapi Vs Tuni Textile Mills Ltd. - 2008 (255) ELT (48) (Guj.) observes that when assessee is not provided with copies of all relied upon documents by the Revenue, the proceedings against the assessee have rightly been set aside by the Tribunal on the ground of denial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not merit acceptance as no question of law, much less a substantial question of law, can be said to arise from the impugned order dated 16-2-2004 made by the Tribunal. It is necessary to bear in mind that show cause notice was issued on 10-2-2000 in relation to preventive check having been undertaken on 20-6-1997. Thereafter, the adjudicating authority passed an order on 19-9-2001 imposing duty liability and penalty as recorded in the order without supplying the documents which had categorically been prayed for by the assessee repeatedly. The last of such request being made by way of communication dated 10-1-2001. The said order was challenged by way of First Appeal before the Commissioner (Appeals) who in fact accepted the grievance voiced on behalf of the assessee in the following terms : However, they had again requested, vide their letter dated 10-1-2001, to provide them the copies of relied upon documents. In my view, the department should have provided the appellants with the copies of all the relied upon documents. However, after observing as aforesaid the Commissioner (Appeals) held that as the assessee had been granted inspection of the documents relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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