9911796707
TMI Blog2022 (1) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... of the facts contained therein. The use of the word shall in the said section makes it clear that the provisions contemplated in the said sub-section are mandatory. It means that the procedure prescribed in Section 9D(i) ibid has to be followed mandatorily in the adjudication proceedings and if without following the procedure stated therein, the adjudicating authority relies upon the statements recorded during investigation then it vitiates the adjudication process. Either the adjudicating authority follow the procedure prescribed in Section 9D or if it is not possible to follow then to discard those statements. Although in the instant case, opportunities were granted by the adjudicating authority to the appellant but they chose not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant, the department mainly relied upon various statements of Mr. Krishna Kumar Sahu [proprietor of the Appellant], Mr. Tirupati Rai [Proprietor of M/s. Sai Deva Steels] and Mr.Suresh Agarwal [Proprietor of M/s. Swastik Steels], which were recorded during the course of investigation. After investigation, a show cause notice dated 8.10.2016 was issued demanding Excise duty from M/s. Swastik Steels i.e. the manufacturer of TMT bars and for imposing penalty on the Appellant and on M/s. Sai Deva Steel (broker) on the ground that the appellant had purchased TMT bars from M/s. Swastik Steels clandestinely through M/s. Sai Deva Steel. The Adjudicating Authority vide Order-in-Original dated 30.3.2019 confirmed the demand of duty against M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that the appellant has also not filed the reply to the show cause notice. He further submits that even if department goes by its own case then it is M/s. Sai Deva Steel, the broker, who was the facilitator but still the penalty of only ₹ 2,000/- was imposed on him and on the other hand a much higher penalty of ₹ 3 lakhs was imposed on the appellant against whom the allegation was that he purchased the TMT bars from M/s. Swastik Steels through the broker M/s. Sai Deva Steel. Learned Authorised Representative on the other hand reiterated the findings recorded in the impugned order and prayed for dismissal of the appeal filed by the appellant. He further submits that despite various opportunities granted, the appellant chose n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough in the instant case, opportunities were granted by the adjudicating authority to the appellant but they chose not to participate in the proceeding as I gathered from the findings recorded by both the authorities below. Be that as it may, justice must not only be done, but must also be seen to be done. When the legislature has laid down a procedure to be followed then it has to be done in that way only and no shortcut can be adopted. Therefore on this ground alone, without going into the merits of the matter, I deem it proper to set aside the impugned order and remand the matter back to the adjudicating authority for de novo adjudication after giving an opportunity of hearing to the appellant. The appellant is also directed to attend t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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