Custom, Excise & Service Tax Tribunal
M/S Reema Gases (P) Ltd vs Commissioner Of Central Excise, ... on 2 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-120/09
& Ex. Appeal No.89/09
Arising out of O/O No.7/Commissioner/CE/Kol.VII/Adjn/2008-09 dated 16.12.2008 passed by Commr. of Central Excise, Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
DR. I. P. LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Reema Gases (P) Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, Kol.VII
RESPONDENT (S)
APPEARANCE Shri N. K. Chowdhury, Advocate for the Appellant (s) Shri S. Misra, Addl. Commissioner (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I. P. LAL, HONBLE TECHNICAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 02. 09. 2013 ORDER NO.FO/A/71033/2013 Per Dr. D. M. Misra :
This is an application for waiver of predeposit of duty of Rs.71.70 lakhs and equal amount of penalty imposed Section 11AC of the Central Excise Act, 1944.
2. At the outset, the ld. Advocate, appearing for the applicant, has placed a Certified Copy of the order of the Honble High Court of Calcutta in Writ Petition No.15608 (W) of 2011. The ld. Advocate has submitted that while disposing the Writ Petition, the Honble High Court of Calcutta has remanded the matter to the Tribunal to re-hear their stay application afresh.
3. The ld. Advocate for the Applicant has submitted that the issue involved in the present case relates to the allegation of clandestine removal of 2858.730 MT of goods manufactured and cleared without payment of duty during the period from August, 2006 to June, 2007. The ld. Advocate has submitted that the show-cause notice was issued to them on 7th May, 2008 allowing 30 days to file their reply, but no reply has been filed by the Applicant till the show-cause notice was adjudicated by the ld. Commissioner on 16.12.2008. The ld. Advocate has submitted that though three opportunities of hearing were granted, but it could not be availed by them due to various reasons, viz, shortage of time, non-availability of Advocate etc. The ld. Advocate has further submitted that this Tribunal while disposing their stay application had made an observation that there was a violation of principle of natural justice. The ld. Advocate has further submitted that since there is violation of principle of natural justice, the impugned order is non-est in law and accordingly, liable to be set aside. The ld. Advocate has submitted that the Applicant has submitted their reply to the show-cause notice on 29th August, 2011 i.e. during the course of pendency of the Appeal before this Tribunal. The ld. Advocate has further submitted that since the reply is before the adjudicating authority and the same was not considered while adjudicating the impugned notice, the Applicant/Appellant be given a final opportunity to present their case before the ld. Commissioner.
4. The ld. A.R. for the Department, has submitted that while disposing their stay petition, this Tribunal has recorded a finding about the callous approach of the Appellant in responding to the impugned notice. He has submitted that the Appellants were given three opportunities of hearing, to which they did not attend on one pretext or the other. Therefore, there is no violation of principle of natural justice. However, since the Appellants have now filed their reply to the show-cause notice, he would have no objection in remanding the case, for deciding the issues afresh. However, keeping in view the callousness attitude of the Appellants, a time frame be fixed for deciding the case.
5. After hearing both sides for some time, we take note of the fact that earlier, this Tribunal directed the Appellants to make predeposit 15.00 lakhs after recording their callous and negligent approach in attending the proceedings before the ld. Commissioner and in that context, observed that the case needs to be remanded to the lower adjudicating authority after the Appellants are put to terms. However, it was also recorded that there was a violation of principle of natural justice. Now, we find that the Appellant has filed the reply to the show-cause notice on 25th August, 2011, i.e. after disposal of their stay petition by this Tribunal on 26.07.2011, and filed a petition before the Honble High Court of Calcutta. The Honble High Court has remanded the matter to the Tribunal for deciding their stay petition afresh. Since, the Appellant did not submit their reply to the show-cause notice , hence, the ld. Commissioner could not record any finding on the allegations vis-`-vis the contention of the Appellant in reply to the show-cause notice. Thus, keeping in view the facts and circumstances as a whole, we find that it is appropriate to waive the requirement of predeposit and take up the appeal itself for disposal. Consequently, with the consent of both sides, the appeal is taken up for final disposal.
6. We find that the Appellant has not filed their reply to the allegations made in the impugned notice. Since the Appellant did not file any reply nor attended the personal hearings, the ld. Adjudicating Authority has decided the case ex-parte. Now, the Appellant has filed a reply to the show-cause notice on 29th August, 2011, therefore, it is prudent to remand their case to the ld.Adjudicating Authority to decide all issues afresh after taking into consideration the reply filed by the Appellant. Both sides agree that the issue has been pending for more than five years, therefore, a time frame for adjudication be fixed. With the consent of both sides, since the Appellant has already filed a reply to the show-cause notice, we direct the ld. Commissioner to decide the issue afresh maxmimum within a period of two months from the date of communication of this Order. The ld.Advocate for the Appellant has submitted that they would co-operate in the re-adjudication proceeding and attend the hearing after receipt of the intimation for such hearing and would not seek frivolous adjournments. In the result, the impugned order is set aside and the appeal is allowed by way of remand to the lower Adjudicating Authority. Stay petition is disposed off.
Dictated and pronounced in the open Court.
Sd/ Sd/
(DR. I.P.LAL) (DR. D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mm
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Ex. Appeal No.89/09