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TMI Blog2020 (8) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on suppression of production details, it is for M/s.ERTP to substantiate the issue raised by the department in this regard. However, M/s.ERTP neither replied to the show cause notice nor participated in the hearing conducted by the department thereafter, but had rather accepted the contents of the documents relied upon by the department and admitted their guilt. Thus, the proceedings initiated against M/s.ERTP was never challenged and had become final - the petitioner instead of availing the opportunities to peruse and take copies of the documents relied upon by the department, had been insisting the department to give them the copies, even after the period stipulated in the show cause notice had expired. Relevancy of the documents sought for by the petitioner for establishing his case and their bonafides in making such a request - HELD THAT:- This issue that requires to be answered by the petitioner was as to why the excess rebate amount claimed on the basis of suppressed production furnished by M/s.ERTP, should not be demanded from the petitioner. The proposal to recover was only on the basis of suppression of production details by the petitioner's processor namely M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 1998 and March 2000, by producing a Disclaimer Certificate issued by M/s.ERTP. 3. On verification of the correctness of the Disclaimer Certificate, it was found that the production particulars submitted to the department by the processor was found lesser than the actual production and thus, the rebate claimed by the petitioner on the suppressed production was demanded through a notice dated 12.12.2003. The petitioner, in his reply dated 03.01.2004, sought for certain documents. The Joint Commissioner of Central Excise, after permitting the petitioner to inspect the documents, had confirmed the demand of ₹ 15,84,083/-, being the excess rebate sanctioned paid to the petitioner. In addition to it, a penalty under Section 11AC of the Central Excise Act and Rule 173Q and 210 of the erstwhile Central Excise Rules, 1944 read with Section 38A of the Central Excise Act, 1944 was imposed apart, from interest under Section 11AB, as well as additional penalty of M/s.ERTP. 4. In the appeal before the Commissioner of Central Excise (Appeals), Salem, the petitioner herein had predominantly raised two grounds stating that their request for certain copies of documents recovered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC of the Act. 8. Insofar as the first ground raised by the petitioner touching upon the violation of the Principles of Natural Justice is concerned, in normal circumstances, non-furnishing of the requested documents, on which reliance is placed by the department for the purpose of making a demand, could be termed as violation of the Principles of Natural Justice and thereby, the consequential demand itself requires to be rendered invalid. But, the relevance and nature of the documents demanded, apart from the conduct of the party, also plays a significant role for such a consideration. The extent of the application of the principles also depends upon the fact situation of a given case, as held by the Hon ble Supreme Cout in BCCI - US CAB (2016) 8 SCC 535. 9. In the present case, the petitioner had claimed and received rebate of duty by production of a Disclaimer Certificate issued by M/s.ERTP. On investigation by the department, it was found that production particulars submitted by M/s.ERTP to the department was less when compared to the actual production, since M/s.ERTP had suppressed the same. The issue therefore before the department, at that point of time, was as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Firstly, as to whether a reasonable opportunity was extended to the petitioner during the course of the proceedings? And secondly, the relevancy of the documents sought for by the petitioner for establishing his case and their bona-fides in making such a request? 14. As stated earlier, when the show cause notice dated 12.12.2003 was issued to the petitioner, there was a specific statement therein that the petitioner was at liberty to peruse the records relied upon by the department and take copies, if required, within 15 days of its receipt. This statement in the show cause notice is not disputed by the petitioner. However, without availing the opportunity, the petitioner had insisted the department to send the copies of all the documents through a reply letter dated 03.01.2004, which was received by the department on 06.01.2004. Even this reply was not made within the 15 days period stipulated in the show cause notice. Subsequently, during the course of personal hearing, another opportunity was extended to the petitioner to peruse the document and take copies thereof. The petitioner's representative has perused the documents relied upon by the department on 01.08.2006 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k for further documents, which will not assist them in anyway for giving an effective reply to the show cause notice. Consequently, it can be held that there were reasonable opportunities extended to the petitioner and therefore, there is no violation of principles of natural justice in this regard. 18. In Sahara India Real Estate Exchange Corporation Limited Vs. SEBI reported in 2013 1 SCC (1), the Hon'ble Apex Court had held that the rules of natural justice have limitations and the party concerned cannot always enjoy the advantage of procedural discrepancies under the rules of natural justice were fair or not. The rules of natural justice, being founded on principles of fairness, can be available only to the party which has itself been fair and therefore, deserves to be treated fairly. In the instant case, the petitioner's claim itself is unfair and in the light of the aforesaid decision of the Hon'ble Apex Court, the advantage of violation of principles of natural justice would be unavailable to them. 19. The second line of submission made by the petitioner is that prior to imposition of penalty under Section 11AC of the Act, there was no proposal in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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