9911796707
TMI Blog2025 (1) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... er for hearing, proceeded to adjudicate the show-cause notice. It appears that the respondent No. 2 has taken into consideration all the grievances of the petitioner with regard to the violation of principle of natural justice which are again reiterated in this petition. Be that as it may, it is not required to entertain this petition on the ground of breach of principle of natural justice in view of the above observation made by respondent No. 2 which may be considered by the CESTAT in the appeal which may be filed by the petitioner under section 35E of the Central excise Act,1944. Conclusion - i) The petitioner's grievances regarding natural justice and document access should be addressed by the CESTAT. ii) The petition is not entertained though it may be maintainable under Article 226 of the Constitution of India with liberty to the petitioner to approach CESTAT challenging the impugned Order-in-original. iii) It is also observed that the time spent by the petitioner before this Court to be considered as bona fide by the CESTAT, if the petitioner file appeal before the Tribunal in accordance with law within four weeks from today without raising issue of delay. Petition d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Rules, 2002. (vi) In terms of proviso to Section 11AC ibid in case, the duty amount alongwith interest and the reduced penalty amount is paid within 30 days of the receipt of the order, then the amount of penalty shall be: reduced to 25% of the amount confirmed at S.No. (v) above. (vii) There shall be no penalty on Shri K. M. Bhandari." 3.2 Being aggrieved by the aforesaid order, the petitioner filed Excise Appeal No. 10320/2013 and cross appeal was also filed by the department being Excise Appeal No. 10999/2013 before CESTAT, Ahmedabad. 3.3 The CESTAT, by order dated 25.10.2023, disposed of both the appeals holding as under: "4. On careful consideration of the submission made by both the sides and perusal of record, we find that the appellant in the reply raised specific issue that certain documents relied upon/non relied upon were not provided to the appellant. The appellant also requested for cross-examination of the witnesses whose Statements were heavily relied upon to confirm the charge of clandestine removal and consequential demand of Excise duty. We find that from the entire adjudication order the Adjudicating Authority has not given any heed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousand Three Hundred Two only) not paid on Ceramic Glaze Mixture (called as frit) clandestinely cleared by them as detailed in Annexure F-5 to the show cause notice and order the same to be recovered from M/s. SVM Cera Tea Ltd., Ankleshwar under the provisions of Section 11A of the Central Excise Act, 1944, by invoking extended period of 5 years as per proviso to sub-section (1) of Section 11A ; (ii) I also confirm the demand of Central Excise duty amounting to Rs. 4,64,64,274/(Rupees Four Crores Sixty Four Lakhs Sixty Four Thousand Two Hundred Seventy Four only) not paid by them on Ceramic Glaze Mixture (called as frit) by way of undervaluation, as detailed in AnnexureF-1 to F-4 to the show cause notice, and order the same to be recovered from M/s. SVM Cera Tea Ltd., Ankleshwar under the provisions of Section 11-A of the Central Excise Act, 1944 by invoking extended period of 5 years as per proviso to sub-section (1) of said Section 11A. (iii) I hereby order to appropriate the amount of Rs. 25,00,000/[Rupees Twenty Five Lakhs only} paid, by M/s. SVM Cera Tea Ltd, Ankleshwar during the investigation, against the aforesaid demand of total Rs. 11,90,56,576/-. (iv) I order to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CESTAT, the respondent No. 2, without considering the request made by the petitioner for documents required by the petitioner to defend the show-cause notice, contrary to the direction issued by the CESTAT, brushed aside such demand in para 7.1 of the impugned Order-in-original by observing that the show-cause notice with all relied upon documents were supplied to the petitioner and therefore, the request made by the petitioner is nothing but a delay tactic. 4.4 It was further submitted that in spite of the fact that in similar demand raised by the Excise Department being dropped by the CESTAT in nine other cases and the though the order of the CESTAT being confirmed by the High Court by dismissing appeals filed by the department, respondent No. 2 ignored such facts and order of the higher authorities and confirmed the demand in case of the petitioner. It was therefore, submitted that the impugned Order-in-original passed by the respondent No. 2 is therefore, liable to be quashed and set aside on all the three counts i.e. (i) no adequate opportunity to cross-examine the witnesses was provided; (ii) respondent No. 2 ignored the directions issued by the CESTAT for providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to 10 witnesses to remain present on 21.08.2024, however, on 21.08.2024, none of the ten witnesses remained present nor any request was made for adjournment, or any submissions were made by any of the witnesses. The respondent No. 2 therefore, recording the statement made by learned advocates appearing for the petitioner for hearing, proceeded to adjudicate the show-cause notice. Paragraph No. 4.1.1 of the impugned order reads as under: "4.1.1 Accordingly, on 21.08.2024, when the matter was posted for cross-examination, none of the above persons appeared nor have submitted any request for adjournment or submitted any submission. Shri K.V. Subrahmanyam Advocate and - Shri K.M. Bhandari CEO, appeared and requested to decide the matter on the lines of judgment by Tribunal in case of similar 13 parties and as per their additional submission today. Shri K.M. Bhandari ji stated that he joined company in April 2007 an case pertains to 2003-04 - 2007-08. He is just an employee and having no interest in company except for salary. Appointment letter copy produced by him and taken on record." 7. With regard to supply of the documents and providing cross-examination, respondent No. 2 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Gujarat who dismissed the appeals filed by the Revenue as reported in Commissioner v. Belgium Glass & Ceramics Pvt. Ltd. - 2017 (356) ELT A 46 (Guj.). 11.3.1 On considering their above plea, I find that the said matter is sub-judice before Hon'ble Supreme Court by way of Departmental Civil Appeal No. 003133-003135 / 2018 Registered on 19-03-2018 along with 7 other tagged appeals. 11.3.2 Further, I also find that each offence case based on the evidence brought on record needs to be weighed against the counter evidence adduced by the litigant assessee in their defence and thereafter the final conclusion can be drawn. It is in this context, I hold that the evidence discussed above not only at the end of the noticee but when the same were correlated with the incriminating evidence found at the end of their buyers are getting matched, makes no room for any other conclusion as drawn. above in relation to both clandestine removal and undervaluation resulting into evasion of central excise duty running into crores. Moreover, when the same were duly corroborated with the corresponding statements of the authorized personnel of the respective assessees who have not only expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the respondent that whether to grant cross-examination to the petitioners is a matter of discretion of the adjudicating authority which can be considered in the Order-in-original. Thus, there are two sets of decisions appearing on the record of these petitions wherein in one of the set it is held that granting of cross-examination is violation of principle of natural justice whereas on the side of the respondent, the decision cited clearly shows that when there is an alternative efficacious remedy is available to the petitioner, such ground can be taken by the appellate authority as the appellate authority is nothing but an continuation of the original proceedings. 61. Therefore, it would be necessary to refer to the various decisions vis-a-vis facts emerging from the record as to in the facts of the case whether the petitioners can raise such issue of cross-examination, supply of documents before the appellate authority or not." 11. Needless to say, that we have refrained ourselves from going into the merits so as to enable the petitioner to raise all the contentions which are raised in this petition otherwise the right of the petitioner would be jeopardized by any observa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
