9911796707
TMI Blog2024 (4) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... n etc. and based on an information received that it had indulged in clearance of certain goods manufactured by it without payment of duty resulted in the preventive unit of the respondent visiting the unit and conducting stock challenge of the finished fabrics stocked in the bonded warehouse. Based on a prima facie and reasonable belief that excess quantities of stock were stored for illicit removal, the department seized the excess stock under mahazar and it was provisionally released on execution of general bond; it also resulted in the issuance of two show cause notices (for short SCN's) dated 11.05.2001 and 02.11.2001 which resulted in two orders being passed on 28.02.2006 by the respondent herein. Being aggrieved by the same appeals came to be filed before CESTAT whereunder the tribunal vide order dated 06.09.2006 set aside the orders in original dated 28.02.2006, with a direction to the respondent to provide a copy of the letter dated 20.01.2001 referred to in the SCN's to the appellant and to decide the matter afresh. 5. In the teeth of direction issued by the tribunal, first respondent adjudicated the show cause notices afresh and by separate orders dated 21.11.2008 and 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d elaborate his submissions by contending that order dated 06.09.2006 passed by the tribunal by remanding the matter to the adjudicating authority with specific direction being final and binding on the department, said order could not have been modified by the tribunal that too based on an application for modification vide order dated 08.03.2010. He would also contend that High Court erred in not appreciating the fact that in the absence of document containing detailed explanation the adjudicating authority cannot appreciate and adjudicate the SCN's and the order of remand to the tribunal is erroneous and High Court at the most could have remanded the matter to the adjudicating authority, if at all it was warranted and not to the tribunal. Hence, on these grounds, he seeks for setting aside the order of the High Court and allowing the appeals. 8. Shri V.C. Bharathi, learned counsel appearing for the respondent would support the impugned order and by reiterating the contentions urged in the counter affidavit and prays for dismissal of the appeal. He would also contend that the appellant has been successfully dodging the adjudication process on one pretext or the other and the so-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In the result, we set aside the impugned orders and allow these appeals by way of remand, directing learned Commissioner to (a) supply a copy of the aforesaid letter dated 20.01.2001 (and enclosures thereof) to the appellants (b) allow them a period of four weeks thereafter for perusal of all records (c) allow them a reasonable opportunity of being personally heard (which shall not be less than 7 days from the date of filing of replies to the SCNs and (d) pass speaking orders in accordance with law within 8 weeks from the date of personal hearing. As the party has undertaken to co-operate with the proceedings of the Commissioner, they are mandated to appear before the Commission for being heard on the date appointed by him." 10. A perusal of the above direction issued by the tribunal would indicate that respondent was directed to supply the copy of the letter dated 20.01.2001 (and enclosures thereof) to the appellant and pass orders after affording reasonable opportunity of the personal hearing. 11. In the teeth of the above direction the respondent herein has passed an order afresh on 21.11.2008 and 27.11.2008 adjudicating the two show cause notices issued earlier. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not made available to them; whereas, vide their letter dated 22.06.2002, MCL fairly admitted receipt of copies of all the documents relied on in the notice; even if they misplaced their copy as stated before CESTAT, copies of the said letter with enclosures should have been available with MCL; and therefore they may file reply to the notice. The communication also mentioned the dates on which MCL was free to appear for hearing. At the time of hearing held on 16.09.2008, Shri. S.S. Thakur, Vice-President (Excise & Legal) appeared along with Shri. M Ramasubramanian, Manager (Excise). They filed reply with reconciliation statements. It was orally argued that since there was no evidence for clandestine removal, the proceedings should be dropped." 12. The direction issued by the tribunal undisputedly has got merged with order dated 27.11.2008 it would be apt and appropriate to note at this juncture itself the contention raised by Shri Shekhar Naphade, learned Senior Counsel which is to the effect that by virtue of the direction issued by the tribunal under its order dated 06.09.2006 having attained finality, the authorities subordinate to the CESTAT having failed to comply with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eli, requesting him to once again provide copies of four documents, out of which, one is the said letter, dated 20.01.2001. The said letter reads as follows:- The Commissioner of Central Excise, Central Excise Revenue Building NGO "A" Colony, Tirunelveli-627 007 Sir, Sub: Show Cause Notice No.20 of 2001, dated 2.11.2001 and No.30 of 2001, dated 11.5.2001. This refers to our letter dated 5th July 2004 and your office response letter dated 8th July 2004 on the above subject. We humbly submit that we are in the process of preparing reply to the above show cause notices. We once again bring to your kind notice that in view of closure of our unit Madura Fabrics Division in early 2002 to which the above show cause notices were issued and due to non-availability of Personnel who handled excise records during the relevant period, we are even unable to trace out certain documents/statements which were relied upon in the show cause notices and said to have been received by us. We therefore, request you to place once again provide us copies of the following documents and statements given by out personnel for our perusal and then prepare proper reply to the above show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled to contend as if they were not in a position to furnish reply to the show cause notice without furnishing a copy of the said letter, dated 20.01.2001. Referring a document in the show cause notice itself need not be construed as though a reliance is also placed by such authority on such document to take an adverse inference against the assessee, unless the show cause notice itself explicitly expresses so. Referring a document in a show cause notice does not mean relying upon the same as well, unless such reliance against the assessee is apparently evident on the face of such notice. 20. Even otherwise, the assessee must show and establish that such non-furnishing of a particular document caused them prejudice and that they are prevented from giving an effective reply to the show cause notice. Certainly, a document which was either not within the knowledge of the assessee or not emanated from them, if relied on in the show cause notice, that too, by taking adverse inference against the assessee based on such document, then non-furnishing of such document would certainly result in causing prejudice to the assessee. On the other hand, if such document itself has em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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