Customs, Excise and Gold Tribunal - Bangalore
M/S. Tecsun Rubber Products vs The Commissioner Of Customs & Central ... on 27 June, 2001
Equivalent citations: 2001(138)ELT706(TRI-BANG)
ORDER
Shri G.A. Brahma Deva
1. This stay application is filed by the applicants for waiver of pre-deposit of duty amounting to Rs 96,64,468/- and penalty of Rs 10,00,000/- and stay of the recovery proceedings.
2. Heard both sides with reference to the stay petition. After hearing for some time we felt that the matter itself can be disposed off on the limited issue. Accordingly amount required to be deposited for the purpose of hearing the appeal is dispensed with and appeal was taken up for regular hearing with the consent of both sides.
3. Shri Shiva Das appearing for the appellants submitted that the matter is coming up before the Tribunal for a second time. Earlier the Tribunal has remanded the matter to the Adjudicating Authority as per Order No 2033-2046/96 dated 8.10.96 with specific directions on tow points. Shri Shiva Das submitted that request for cross-examination has not been acceded to and this aspect has been dealt with by the Tribunal in para-5 of the Order. He also submitted that there was a specific direction in para-5 that the Commissioner is directed to determine the quantum of the production based upon the consumption of electricity units, following the series of decisions including in the light of the decision reported in 1990(49) ELT 464 Para-5 Tribunal Order is as follows-
"We further find that statements were recorded from various witnesses for arriving at the quantum of clearances of tread rubber clandestinely. The appellants had specifically requested for cross-examination of those witnesses on who statements reliance has been placed by the adjudicating authority. In spite of their request in their reply to the show cause notice and in spite of the fact that the appellants wanted to cross examine those witnesses on whose statements reliance has been placed by the department, the adjudicating authority has not granted this request of the appellants. The reason given by the adjudicating authority is that the appellants did not press for the cross-examination of those witnesses when personal hearing was granted. We observe that there is nothing on record to show that on the date of personal hearing the adjudicating authority had summoned all the witnesses and that the appellants had given up their right of cross-examination of the witnesses. Further, there is also nothing on record to show that the appellants have waived their right of cross-examination of those persons on whose statements reliance has bene placed by the adjudicating authority. There is also absolutely no evidence brought on record that it was because of the mistake on the part of the appellants that the witnesses could not be cross-examined. On the contrary there is absolutely no evidence brought on record that the adjudicating authority had kept the witnesses present during the personal hearing for cross-examination of the persons from whom statements have been obtained. The evidence on record goes to show that the appellants were not given the opportunity of cross-examination of the witnesses. Thus there is violation of principles of natural justice as pleaded by the appellants in this regard also. It is further seen that the adjudicating authority had taken into consideration different norms for different periods for the alleged clandestine manufacture and removal of tread drubber. In this connection the learned Counsel Shri Lakshmikumarn contended before us that in similar cases the Tribunal had taken decision consistently that consumption of electricity wherever the same is available should be taken into consideration for reckoning the quantum of tread rubber manufactures and cleared. This factor was not dealt with by the adjudicating authority in the impugned order. The adjudicating authority has not given any reason for not taking consumption of electricity as a relevant factor and also the capacity of the machinery installed. For this reason also the impugned order is liable to be set aside. In the result, we set aside the impugned order and remand the matter to the adjudicating authority fr de novo adjudication in the light of our observations above after affording opportunity of being heard to the appellants by observing principles of natural justice in accordance with law. The adjudicating authority should also taken into consideration the decision of the Special Bench reported in 1990 (49) ELT 464 and dispose of the matter in the light of the various decisions of the Tribunal wherein it has bene laid down that consumption of electricity for production of tread rubber in the assessee's unit has to be one of the important basis, and also the norms fixed by the department for determining the quantum of production, We, therefore, set aside the impugned order and allow the appeals by remand. It is open to the appellants to adduce all evidences as are available to them under law during the de novo proceedings."
4. Shri Shiva Das contended that the assessing authority has not made even an attempt to call the witness to cross examination as can be seen from the impugned Order. Straight away he has rejected the request of cross-examination on the ground that 15 years have already been lapsed.
5. With reference to the electricity consumption the matter has not been dealt wit as directed by the Tribunal. In this context he drew our attention to para 9.3 of the impugned order. In that para it was observed that whereas the production of tread rubber accounted in the statutory records of the factory are 1,26,567 Kg and 1,27.9 Kg respectively. Thus, assessee's recorded production in 80-81 and 81-82 are in excess of 67,375 KG and 1,01,060 Kg than that is estimated on the basis of electricity consumption in the respective years. Shri Shiva Das submitted that since the order of the Tribunal has not been duly complied with, the impugned order is liable to be set aside.
6. Shri Thomas appearing for the Revenue justified the order of the assessing authority in rejecting the cross-examination as well as rejecting the basis of electricity consumption in determining the quantum of production. He submitted that since 15 years have been lapsed, it was very difficult for the Department to call for concerned witnesses and to allow the examination. As regards electricity consumption he justified that since the figures in RG-1 records exceeds the norms of electricity consumption, at there was no justification to take the electricity consumption as basis.
7. Shri Shiva Das also submitted that on the very day in a similar matter, in the similar facts and circumstances while following the directions of the Tribunal the, Commissioner in the De-novo proceedings in another case, has accepted the electricity consumption as basis in determining the quantum of production.
8. We have carefully considered the matter. On going through the submissions made by both sides with reference to the facts and the direction given by the Tribunal we find that there is some force in the arguments advanced on behalf of the assessee that the direction of the Tribunal has not been complied with. It was also submitted, assuming that the figures in RG-1 exceeds norms for the two years, there was no justification for not taking the electricity figures for the remaining years. Since cogent reasons are not forthcoming for rejecting the electricity consumption as basis in determining the quantum of production, we are of the view that this matter will have to go back for reconsideration. In the view we have taken we are remanding the matter to the concerned Commissioner to decide the issue afresh and to follow the directions of the Tribunal in passing the order in accordance with law. Since the matter being an old one, Commissioner is directed to dispose of the matter at the earliest possible time preferably within three months from the date of receipt of this order. Thus these five appeals are allowed by any of remand.
(Pronounced and dictated in open court)