Customs, Excise and Gold Tribunal - Mumbai
Kartarlal Puranmal Parpiyani vs Commr. Of C. Ex., Aurangabad on 10 January, 2002
Equivalent citations: 2002(142)ELT366(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Appeals taken up for disposal with consent after waiving deposit.
2. Of the 21 appellants before us, R.K. Patel & Co. is the manufacturer of chewing tobacco which is liable to duty under sub-heading 2004.40 of the Excise Tariff. In the common order impugned in these appeals, duty has been demanded from the company on the ground that it manufactured and cleared quantities of tobacco without paying the duty due thereupon. Penalties have been imposed on it under Rule 173 and on its partner under Rule 209A on the ground that they purchased or otherwise acquired this non-duty paid tobacco.
3. In response to the show cause notice that was issued, R.K. Patel & Co. had by its letter dated 29-5-2000, asked for cross-examination of 21 persons. The letter containing this request pointed out that the demand for duty was based only on statements of these persons. The annexure to the letter also indicated, briefly and clearly, the reasons for which cross examination of each of them was required. The Commissioner accepted the request. The letter dated 9-6-2000 of the Superintendent (Adjudication) informed the manufacturer that summons has been issued to 19 persons to attend hearing and letters had been issued to the other two, who were the Superintendent and Inspector of Central Excise who investigated the case. At the hearings that took place on 'three occasions on 25-6-2000, 28-9-2000 and 2-11-2000, the Counsel for the manufacturer cross examined five of these 21 witnesses. By his letter dated 7-11-2000 to the advocates for R.K. Patel & Co. asked the Commissioner for the record of cross examination. In reply the Commissioner asked the advocates to file a reply within 10 days of the receipt of this letter, failing which the matter would be decided ex parte. The letter informed the advocates that no further hearing of the case shall be fixed. In its reply dated 28-11-2000 V.M. Doiphode & Co., advocates, protested to the Commissioner that it had no opportunity whatsoever to make its submissions. It also pointed out that the two departmental officers to whom letters were issued also had not turned up for hearing. Therefore while recording its stand that the Commissioner's letter was in violation of the principles of natural justice, reserving the right to cross examine the other witnesses, a request was also made for making submissions. Written submissions were however put forth. The Commissioner passed the orders impugned in these appeals.
4. The contention of the Counsel for R.K. Patel & Co. which was supported by the representatives of other appellants appears to us to be eminently reasonable. This is that once the Commissioner has accepted the request for cross examination, he could not, in the middle of the proceedings, suddenly reverse his decision. The letter of the Commissioner does not disclose why he abruptly decided to terminate the cross examination going on. It does not disclose that, after genuine efforts made by the department, the witnesses really could not be found. Counsel points out that this would in any case not apply to the two departmental officers. They were very much within the control of the Commissioner and were required to obey the orders issued by him.
5. The Commissioner does not even attempt to offer an explanation for his rather strange conduct. All that he says in the order is that the other witnesses did not attend. This is in fact an incorrect statement. Mr. S.P. Mathew, one of the two advocates who represented the appellant on the three dates of hearing, makes a statement before us that although summons may have been issued to all witnesses to attend on 21-6-2000, the first date of hearing, only seven witnesses were examined. It is evident that it would not have been possible to cross examine more than three or four witnesses on a given date. Further, the Commissioner's order does not disclose what steps were taken to enforce the attendance of these witnesses. It does not appear to us that any steps were taken. The departmental officers were available. The statements of the witnesses were recorded about two years ago; it is not unreasonable to accept that a large number of the witnesses would be available, and could have been called. Suitable steps should have been taken by the Commissioner to enforce the attendance of the witnesses and if these steps were unsuccessful the results should have been disclosed to the Counsel.
6. In these circumstances, we are of the view that the Commissioner's order cannot be upheld to the extent that it relies on the statements of 14 persons who, we have concluded, were not given a reasonable opportunity to be cross examined. The Counsel for the appellant is not able to justify his request for cross examination of the Superintendent and Inspector who investigated the case. He says that the request for cross examination is to emphasize inconsistencies that are present in the show cause notice. We do not see why cross examination of these officers is required in order to point out these inconsistencies. We also do not see why an admission from these officers of any inconsistencies in the show cause notice will result in these inconsistencies being better established than they were pointed out by the appellant.
7. The Commissioner to whom we propose to remand the matter, will make genuine efforts to enforce attendance of the other 14 witnesses and make them available for cross examination. In the event that he finds that they were not available, he will inform the Counsel for the appellant of the steps that he has taken which were unsuccessful for enforcing their attendance. After cross examination, a reasonable opportunity shall be provided to the representatives of the noticees to make their submissions on the merits of the issue. The Commissioner shall thereafter pass his orders.
8. The appeals are accordingly allowed and the impugned order set aside.