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TMI Blog2023 (8) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... they have discharged the duty as applicable during the material time. It is also their contention that they have been requesting the department to furnish documents relied upon by the department for quantification of the duty. Undisputedly, the original documents have been taken by the department during the investigation. It is seen that the direction of the Tribunal has not been complied by the department. The appellant had filed RTI application and in the reply dated 17.01.2018, the department has stated that the documents are not readily available. However, the de novo order has been passed by the adjudicating authority on 29.05.2018 - It cannot be understood how the department has been able to pass the de novo order without perusing the relied upon documents if the documents were not available. In case, the documents were available, the same ought to have been supplied to the appellant before passing the order. In the personal hearing dated 08.05.2018, the counsel appearing for the appellant has stated before the adjudicating authority that appellant has not received the required documents to put forward their defence with regard to the error in the quantification by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable value declared was less than the price at which similar goods were sold by the consignment agents on the dates of removal, show cause notice dated 25.07.2002 was issued to the appellant to demand differential duty of Rs.26,73,083/- invoking the extended period along with interest and for imposing penalties. After due process of law, the original authority vide Order-in-Original dt. 05.01.2004 confirmed the demand along with interest and imposed equal penalty and also ordered appropriation of an amount of Rs.9,06,321/- already paid by the appellant. The appellant then filed appeal before the Commissioner (Appeals). 2. All along, the appellant had contended that there was calculation error and the differential duty would work out to be only Rs.17,07,752/- and that appellant has already paid an amount of Rs.18,81,515/-. They also pleaded that they were not supplied with the relied upon documents. On appeal filed by appellant, the Commissioner (Appeals) vide Order-in-Appeal dated 29.10.2004 did not accept the contention of the appellant that there was calculation error and that the differential duty works out only to Rs.17,07,752/-. However, the penalty was reduced to Rs.7,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed all the original documents from the appellant s factory. The factory was under closure for BIFR proceedings. The appellant vide their letter dated 24.10.2002 requested the department to return the copies of the original records taken away by the department. Para-10 of the show case notice was adverted to by the learned counsel to submit that the documents relied upon in Annexure II are the basis for computing the duty demand. In the said para of the SCN it is stated that the original documents have been taken by the department and if the appellant desires to peruse the documents, they can peruse these documents at the Adjudication Section of the Office of the Commissioner of Central Excise, Coimbatore on working days with prior intimation. The appellant had several times requested for copies of documents for which there was no response. After the matter had reached the Tribunal, the Tribunal directed the department to allow the appellant to peruse the documents. Pursuant to the direction, on 23.02.2016, the Consultant, Sri J.R. Srinivasan and Advocate, Sri Karthika Prasad were allowed to peruse and collect the documents. However, the said consultant and advocate were issued only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant stating that the documents are not readily available and the same will be traced out from the record room and will be intimated to the appellant within a week. Thereafter, there was no intimation to the appellant with regard to the documents. However, on 29.05.2018, the adjudicating authority passed de novo adjudication order confirming the demand, interest and penalties as raised in the show cause notice. 6. It is submitted by the learned counsel, that though the Tribunal had specifically remanded the matter to furnish the documents to the appellant, same has not been complied with. In spite of repeated efforts, the appellant has not received the copies of relied upon documents. If the originals are taken away by the department, the same ought to have been returned to the appellant after issuance of the show cause notice. In the present case, the department has neither returned the original documents nor given the photocopies of documents which have been the basis for quantifying the duty demand. Ld. Counsel argued that there is complete failure on part of the department in complying with the orders of the Tribunal. To support this, learned counsel relied upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant vide their letter dt. 18.02.2002 agreed for the adoption of value based on the nearest comparable price. Accordingly, the value in respect of the said invoices was adopted as per the nearest comparable price, in the above cases for the purpose of computing the differential duty on account of depot / consignment sales. 9. Though the appellant contends that the entire duty demand has been discharged by them and the quantification of duty is erroneous, the appellant has not furnished any document to establish the same and has shifted the burden upon the department to contend that copies of the documents have not been supplied to them. It is argued that the original authority has rightly confirmed the demand in the de novo and has been rightly upheld by the Commissioner (Appeals). He prayed that the appeal may be dismissed. 10. Heard both sides. 11. The show cause notice is dated 25.07.2002. It is not disputed that the appellant had filed price declaration as required under Rule 173C of Central Excise Rules, 1944. However, the department noticed some price variation for certain invoices in regard to clearance of goods to consignment agents for which the demand has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng all the issues open and gave an opportunity to the appellant to furnish further evidence and also directed the department to supply the documents to appellant. It is seen that the direction of the Tribunal has not been complied by the department. The appellant had filed RTI application and in the reply dated 17.01.2018, the department has stated that the documents are not readily available. The said Department s letter reads as under : As per your letter dated 12.01.2018, you have visited this Office on 17.01.2018 with respect to above mentioned RTI application for perusing the relied upon documents in respect of SCN No.V/55/15/52/2002-Cx.Adj. dated 25.07.2002 issued by the Commissioner of Central Excise, Coimbatore. However, it is stated that since the requested documents in the said RTI application pertains to the year 1997 to 2001 are not readily available, the same will be traced out from the record room and will be intimated to o for perusal within a week. 13. However, the de novo order has been passed by the adjudicating authority on 29.05.2018. We do not understand, how the department has been able to pass the de novo order without perusing the relied upon doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the months of February, 2001 and we could not get the same since we have stopped consignment sales by March 2001 itself. Accordingly, we have adopted the figures as arrived at by the Audit and reflected in the SCN for the months February and Marc, 2001. The differential value works out to Rs.3,12,622/- and the differential duty works out to Rs.57,522/- (BED Rs.50,019 + AED Rs.7,503). In fine the duty liability from us is only Rs.74,100/-. Apart from this we have to pay the interest as worked out by the Range Superintendent vide his letter O.C.No.1037/2001 dated 4.7./2001 (i.e. Rs.90,008 + 56,360 + Rs.24120). In addition to this the interest has to be worked out for the belated payments made for the months August 2000 to January 2001 + on the differential duty for the February and March, 2001. 15. From the above, there is nothing to conclude that the documents (especially final sale invoices) were not taken away by department. In fact it is expressly stated in the SCN that documents were taken by the department. In the above written submissions, the appellant has stated that they have paid Rs.18,80,673/- and that they are not able to understand how the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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