Custom, Excise & Service Tax Tribunal
Cce, Ludhiana vs M/S Gulab Industries (P) Ltd on 6 July, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi. Date of hearing/decision: 06.07.2010 For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) ---------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 Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Excise Appeal No. 1266 of 2005 [Arising out of Order-in-Original No. 73/CE/JC(Ldh)/2004 dated 03.06.2004 passed by the Joint Commissioner, Central Excise, Ludhiana]. CCE, Ludhiana Appellants Vs. M/s Gulab Industries (P) Ltd. Respondent
Appearance: Shri Sunil Kumar, DR for the appellants. Shri Kamaljit Singh, Advocate for the respondent. Coram: Honble Sh. Justice R.M.S. Khandeparkar, President Honble Sh. Rakesh Kumar, Member (Technical) Oral Order No._____ Per: Shri Justice R.M.S. Khandeparkar:
Heard the learned DR for the appellant and learned Advocate for the respondent.
2. This appeal arises from order dated 30.12.2004 passed by the Commissioner (Appeals) whereby the appeal filed by the Department against the order of the adjudicating authority for failure on the part of the adjudicating authority to impose penalty, has been dismissed while the appeal filed by the assessee against the order of the adjudicating authority confirming the demand has been allowed. The net result of the impugned order is that the proceedings which were sought to be initiated against the respondents on allegation of clandestine removal of the goods with the intention to evade duty has been quashed.
3. The adjudicating authority vide its order dated 03.06.2004 confirmed the demand of duty to the tune of Rs. 12,00,481/- against the respondents herein alongwith interest thereon, besides imposing penalty on the dealers. The proceedings in that regard proceeded ex-parte. The said order was sought to be challenged by the assessee respondent herein mainly on the ground that despite repeated requests for copies of the relied upon documents, the same were not furnished to the respondents and the matter had proceeded ex-parte. The contention in that regard was accepted by the Commissioner (Appeals) and further observing that even though opportunity was given to the department to furnish the copies of the documents at the appellate stage, the same were not furnished. In those circumstances, the appeal was allowed and the order passed by the lower authority was quashed. Simultaneously, the appeal filed by the Department making grievance about the non imposition of penalty against the respondents was also dismissed.
4. Learned DR while assailing the impugned order submitted that even assuming that copies were not made available to the respondents before the disposal of the matter, the Commissioner (Appeals) could not have quashed the proceedings and could have given proper opportunity to the Department to furnish the copies of documents and for that purpose could have remanded the matter. According to learned DR the department has very goods case on merits and, therefore, opportunity should be given to the department in the interest of revenue.
5. On the other hand, learned Advocate for the respondents submitted that the Commissioner (Appeals) had no jurisdiction to remand the matter and that therefore he gave opportunity to the Department to furnish the copies of documents to the respondents by issuing direction in that regard, under letter dated 17.12.2004. Yet the Department failed to furnish the copies of documents to the respondents. In those circumstances, no fault can be found with the order of the Commissioner (Appeals) quashing the proceedings.
6. Learned DR further submitted that there was no sufficient time granted to furnish the copies of documents. The letter was issued on 17.12.2004 and impugned order was passed on 30.12.2004.
7. The undisputed facts are that though the show cause notice was issued to the respondents, the relied upon documents were not furnished to the respondents alongwith the show cause notice. It is also undisputed fact that pursuant to the service of show cause notice, the respondents demanded the copies of those documents. Though it is the case of the appellant that pursuant to such demand, the respondents were directed to collect the copies of the documents from the preventive branch on any working day and that they failed to do so, neither the order passed by the adjudicating authority nor the memo of appeal before the Tribunal discloses the dates of the alleged letters or the communications stated to have been sent by the department directing the respondents to collect such documents.
8. In any case, the impugned order discloses that on 17.12.2004 while the matter was pending at the lower appellate stage, there was direction to the Department to furnish the copies of the documents and statements recorded by the Department to the respondents by 24.12.2004. Undisputedly, no such copies of documents were ever furnished. Learned DR has made grievance about lack of time in that regard and that very short time was granted to do the needful. However, the records do not support the contention. The records nowhere disclose that department had any time made any grievance about shortage of time or any efforts were made to seek extension of time from the Commissioner (Appeals) to furnish the copies of documents to the respondents. What is pertinent to note here that even in the course of the filing of the appeal, the department could have furnished the copies of such documents alongwith memo of appeal to the respondents. There is no explanation forthcoming for failure on the part of the Department to do so. Even today we have not been able to peruse the copies of such documents. In order to show the bonafide on the part of the Department in that regard, it was expected from the Department not only to furnish the copies of such documents to the respondents but also to place the copies thereof on record before us in the present appeal proceedings. Failure in that regard discloses lack of bonafide on the part of the appellants.
9. Once it is clear that the respondents were sought to be issued show cause notice without furnishing copies of relied upon documents and even the efforts were made on the part of the respondents to get the same did not yield any fruitful result and even today the copies of the documents are not made available to the respondents, we do not find any case for interference in the impugned order.
10. For the reasons stated above, therefore, there is no case for interference in the impugned order. The appeal fails and is hereby dismissed.
[Justice R.M.S. Khandeparkar] President [Rakesh Kumar] Member [Technical] /Pant/