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TMI Blog2021 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant as delaying tactics. Understandably, the charged appellants would see their interest in getting things delayed. However, department should have taken commensurate steps so that the appellants could not raise such a claim in the first instance. Understandably, replying to such a big case takes some time after receiving the records and to this extent the appellants are within their rights. We find that the revenue erred seriously in sleeping over one year, in rushing through the motions thereafter through a period of mere 2-3 months, in fixing personal hearing on 4 dates while correspondence for handing over documents is going on etc. Consequentially, the fact remains that the appellants were not provided with the RUDs/ Non-RUDs completely or in even time; the appellants were denied a right that was available to them as per Rule 24A of Central Excise Rules, 2002 and CBEC instructions contained in Circular No. 171/5/96-CX.6 dated 02/02/1996, Instruction No. 207/09 /2006-CX.6 and Circular No. 42/88-CX.6 dated 24/05/1988. Therefore, we find that they were not given opportunity to represent themselves - thus, this is a clear case of not following principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice if the Tribunal decides the matter on merits. The only course, available is to send the case back to the adjudicating authority for passing the order after curing the defects i.e. after observing principles of natural justice in letter and spirit. The appeals are allowed by way of remand to the adjudicating authority for de novo consideration after observing the principles of natural justice - The concerned authorities are directed to make available documents/copies, a request for which is already made, to the appellants, within 4 weeks of receipt of this order. - Excise Appeal Nos.75909-75918 of 2018 - FINAL ORDER NO. 75015-75024/2021 - Dated:- 19-1-2021 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER(TECHNICAL) Dr.Samir Chakraborty, Senior Advocate Shri K.K.Acharya, Advocate for the Appellant (s) Shri K.Chowdhury, Authorized Representative for the Respondent (s) ORDER These appeals are directed against, Order-in-Original No. No. 32/ Commissioner/CE/ Haldia/Adjn/2017 dated 28.11.2017, passed by the Commissioner, CGST Central Excise, Haldia Commissionerate, on the basis of Show Cause Notice, dated 21.09.2016, issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant M/s or Shri Duty confirmed (Rs.) Penalty imposed (Rs.) 1. 75909/2018 RML Unit-1 33,75,07,475 33,75,07,475 2. 75914/2018 RML Unit -2 10,93,71,399 10,93,71,399 3. 75915/2018 RCL Unit 1 2 4,85,80,126 4,85,80,126 4. 75918/2018 RCL Unit 3 17,73,58,794 17,73,58,794 5. 75912/2018 Sajjan Patwari, Director RML-1, 2 and RCL-1 -3 - 12,00,00,000 6. 75910/2018 Sanjay Kumar Patwari, Director RML-1 -2 - 8,00,00,000 7. 75916/2018 Sanjib Kumar Patwari, Director RCL- 3 - 4,00,00,000 8. 75911/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given sufficient time to prepare their reply after getting most of the documents; Commissioner confirmed a demand of 67 crores whimsically and denying Principles of Natural Justice repeatedly; it is to note that Commissioner himself recorded in Para 9 of the order that the hearings was fixed on 19/9-2017, 11-10-2017, 31/10/2017 and 15/01/2017 even when he was aware that the appellants did not get the records totally. DGCEI provided them stock verification sheets without calculation sheets though requested by them. The learned Commissioner has alleged that the appellants were adopting a delay in strategy only with intension to postpone the proceedings; Commissioner has ignored the fact that some nonrelied upon documents was given after the PH i.e, on 20/21-112017 and invoices which are of vital importance have not been return till date; the adjudicating authority has violated Rule 24A of Central Excise Rules, 2002 and CBEC instructions contained in Circular No. 171/5/96-CX.6 dated 02/02/1996, Instruction No. 207/09/2006-CX.6 and Circular No. 42/88-CX.6 dated 24/05/1988. They relied upon the decisions of Allahabad High Court in the case of M/s Novamet Industries Vs.UOI,200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decisions/circulars as regards return of un-relied upon documents. The appellants were not afforded a reasonable opportunity to submit their complete replies to the show cause notice and attend personal hearing in the matter. 5 2.He relies on the following cases and circulars (i). Silicon Graphics System (India) Private Ltd Vs UOI 2006 (204) ELT 247 (Bom) (ii). JVS Food Pvt Ltd Vs UOI 2018 (10) GSTL 291 (Raj) (iii).CCE Vs Saraswati Rubber Works (P) Ltd 2010 (257) ELT A101 (P H) affirming 2008 (11) STR 544 (T) (iv). Engineering Technics (India) Vs CCE 2008 (10) STR 107 (T) (v). Circular F. No. 224/37/2005-CX.6 dated 24. 12. 2008 (vi). Circular No. 1053/2/2017-CX dated 10.03.2017 5.3. He submits that it was held in Silicon Graphics System (India) Private Ltd Vs (Supra) that 14. Vide circular dated 13th June, 1988 issued by the Department of Revenue, Ministry of Finance, Government of India, directions have been issued to the concerned officers in relation to the seized documents and return thereof, that in order to avoid the complaints, ordinarily, the department itself should take initiative to return the documents which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings instead; appellants grievance about non-consideration of the purported interim reply is unfounded because the impugned Order was passed on 28-11-2017, whereas the purported interim reply was prepared on 20-12-2017; therefore, it cannotbe said that natural justice was denied to the appellants. 6.2 Learned Authorised representative submits that assuming but without admitting that natural justice was denied to the appellants, remand is the proper remedy. He submits that Hon ble Supreme Court in the case of Uma Nath Pandey vs. State of U.P[2010(20) STR 268(S.C)] held that whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. He submits that Bombay High Court in the case of CC (General) [2008 (230) ELT 242 (Bom) and Hon ble Punjab Haryana High Court in the case of CCE vs. Azad Engineering Works 2006 (202) ELT 423 (P H.) held similarly. He further submits that in all the cases relied upon by the appellants during hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs by requesting to allow them for a further period of another two months for submission of their reply on flimsy grounds; they have hardly shown any urgency to collect the documents in time to comply with the law of the land; the sole intention as is apparent has been to delay the due process of law to take its own course; appellants require the relied upon documents to prepare their defence and the same have been supplied to them; non-relied upon documents also were supplied by the investigating agency; accordingly, he had no option but to proceed with the adjudication proceedings for deliverance of justice to both sides. 9. Learned commissioner records the following findings with respect to the above. 10.1 I have carefully gone through the entire case, materials available on record, and minutely perused the Noticees' reply against the notice of the personal hearing. I find that eighteen numbers of the noticees did not appear for Personal Hearing though enough opportunities were given to them. Under the circumstances, there appears no option except to proceed to decide the case ex - parte. In this regard, I rely upon the case of Saketh India Ltd Vs Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed DGCEI about non-receipt large number of seized non-relied documents and printouts from the pen drive, CPU and CDs and vide letter 30-10-2017, they informed commissioner about non receipt of the same; in spite of the same commissioner fixed personal hearing on 15-11-2017; vide letter dated 8-11-2017 DGCEI informed the appellants to collect the non- relied upon documents from their office on 09.11.2017. Vide letters dated 13/15-11-2017, the appellants informed the Commissioner about receipt of only some documents from DGCEI and submitted that they would require about 5 days to reconcile as to whether all documents have been received or not; they would require another two months to prepare and file their replies after all the documents were received. Appellants again wrote to DGCEI, vide letter dated 15-11-2017 requesting to supply the remaining documents enclosing a complete list. Appellants submit that DGCEI returned only partially the documents contained in 28 seized files and seized copies of DSA of Rashmi Cement Ltd; most of the remaining seized un-relied upon documents, specified in the annexures to the letter dated 15.11.2017, were not returned; out of the 80 files o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all is required to be held. In this regard, learned senior counsel for the appellant pressed into service the doctrine of duty of adequate disclosure which according to him is an essential part of the principles of natural justice and doctrine of fairness. A bare reading of the provisions of the Act and the Rules do not support the plea taken by the appellants in this regard. Even the principles of natural justice do not require supply of documents upon which no reliance has been placed by the Authority to set the law into motion. Supply of relied on documents based on which the law has been set into motion would meet the requirements of principles of natural justice. No Court can compel the Authority to deviate from the statute and exercise the power in altogether a different manner than the prescribed one. As noticed, a reasonable opportunity of being heard is to be provided by the Adjudicating Authority in the manner prescribed for the purpose of imposing any penalty as provided for in the Act and not at the stage where the Adjudicating Authority is required merely to decide as to whether an inquiry at all be held into the matter. Imposing of penalty after the adjudication is fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, the request of the petitioner cannot be said to be unreasonable. Even if the Commissioner thought that the request of one month was unreasonable, at least a reasonable time could have been given to the petitioner to enable him to file reply to the show-cause notice and then the order-in-original could have been passed. 11.3 We also find that the ratio of the decision of the above cases and others cited above, establish that non return of documents even though non-relied upon constitutes non observance of the principles of natural justice; it is not for the authority to decide whether such documents requested for are really required for filing their defence. We also find that CBEC, vide Circular issued under F. No. 224/37/2005CX.6 dated 24.12.2008, has specifically directed that After issue of SCN, all un-relied upon documents must be returned to the person from whom it was received, within 15 days of issue of SCN. 12. We find that while the show cause notice was issued in September 2016, the RUDs and Non-RUDs were not returned to the appellants in clear violation of Rules and Boards instructions cited above. After sleeping over for about a year, the clamour for compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f natural justice have been violated, the next course would be remand of case to the authorities. We find that even in the cases relied upon by the appellants, the appeals were allowed only by way of Remand. We find, as per our discussion above, that the department did not properly adhere to the procedures in a case involving alleged evasion of 64 Cr of duty; the proceedings were rushed through after lying low for about a year of issuance of SCN, even though the adjudicating authority was aware that efforts were on for obtaining the records seized. We find that the appellants were not provided the non-relied upon documents and thus were denied an opportunity to file a written reply to their satisfaction and to represent themselves during the personal hearing. However, we find that the lapse on the part of the Revenue is a curable defect. In the interest of Justice, reasonable opportunity needs to be given to the Revenue to cure the defect and to conduct the adjudication adhering to the principles of natural Justice. Such an opportunity is only possible when the case is remanded back to the adjudicating authority so that the defects are cured and rectified and an opportunity is g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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