Custom, Excise & Service Tax Tribunal
(1) M/S S. F. Forgings Pvt. Ltd vs Commr. Of Central Excise, Kolkata Ii on 1 April, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
SPs.74,75/08 & Ex.Appl.Nos.69,70/08
& MA-556/09, SP-52/09 & Ex.Appl. No.46/09
& Ex.Appeal No.40/08
Arising out of O/O Nos.35/Commissioner/CE/Kol.II/Adjn/2007-08 dated 31.10.07 passed by Commr. of Central Excise, Kol.II, O/O No.CCE/Commer./Kol.I/Adjn./No.6/2008 dated 14.11.2008 passed by Commissioner of Central Excise, Kol.I & O/O Nos.35/Commissioner/CE/Kol.II/Adjn/2007-08 dated 31.10.07 passed by Commr. of Central Excise, Kol.II.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI M. VEERAIYAN, 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? :
(1) M/s S. F. Forgings Pvt. Ltd.
(2) Shri Kishan Dhanuka
(3) M/s Bankey Behari Commercial Pvt. Ltd.
(4) M/s Adhunik Corporation Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Kolkata II
Commr. of Central Excise, Kolkata I for Sl.No.(3)
RESPONDENT (S)
APPEARANCE Dr. Samir Chakraborty for Sl.No.(1), Shri V. N. Dwivedi, both advocates for Sl.No. (2), Shri O. P.Trivedi, Advocate for Sl. No.(3) and Shri Rajesh Gupta, Accountant for Sl.No.(4) for the Appellant (s) Shri A. K. Sharma, JDR for the Department CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI M. VEERAIYAN, HONBLE TECHNICAL MEMBER Date of hearing & decision : 01. 04. 2011 ORDER NO.. Per Shri S.S.Kang :
Heard both sides. The Revenue filed the Miscellaneous Application No.556/09 for early hearing of the appeal. As the appeals are being taken up today for final hearing, the application for early hearing is dismissed as infructuous.
2. Ex.Appeal No.69/08 is filed by M/s S. F. Forgings Pvt. Ltd. and Ex.Appeal No.70/08 is filed by Shri Kishan Dhanuka and Ex.Appeal No.46/09 is filed by M/s Bankey Behari Commercial Pvt. Ltd. along with applications for waiver of predeposit of duties and penalties.
3. The Tribunal vide stay order dated 7.7.08 in the cases of M/s S. F. Forgings Pvt. Ltd. and Shri Kishan Dhanuka, directed them to predeposit 50% of the duty amount. The appellants challenge the order and the Honble High Court of Calcutta vide Order dated 19th December, 2008 directed the Tribunal to re-consider the application for recalling the order dated 7.7.08. In pursuance to the order passed by the Honble High Court, the applications are being taken up for hearing.
4. In the case of M/s Bankey Behari Commercial Pvt. Ltd., the application for waiver of predeposit is also being taken up.
5. Ex.Appeal No.40/08 is filed by M/s Adhunik Corporation Ltd. which is against the impugned order and the impugned order is also passed on the same evidence and in respect of same show-cause notice, M/s Adhunik Corporation Ltd. had also complied with the condition imposed by the Tribunal for hearing of the appeal in the stay order. Hence, the appeal is being taken up for hearing.
6. The contention of the appellants in the stay applications for waiver of predeposit of duties and penalties is that an investigation was initiated against the appellants and pursuance to the investigation, a common show-cause notice was issued to all the four appellants. However, the same was adjudicated by two different adjudicating authorities. It is also submitted that the applicants had not filed replies to the show-cause notice as the copies of the relied upon documents were not supplied to the applicants and the same are supplied during pendency of the present appeals on the direction of the Tribunal. The appellants submitted that this fact was noticed in the Miscellaneous Order dated 23.9.08 passed by the Tribunal. The contention is that as the impugned order is passed without supplying copies of the relied upon documents, hence, the impugned order is passed in violation of principle of natural justice, hence, the demand is not sustainable.
7. We find that at the instance of the direction given by the Tribunal, now the Revenue supplied all the relevant documents to the appellants as evident from the Miscellaneous Order dated 23.9.08, hence, we are taking all the appeals for hearing after waiving predeposit of duties and penalties.
8. From the facts of the case, we find that a common show-cause notice was issued to all the four appellants demanding duty from M/s S. F. Forgings by denying credit in respect of inputs received by them from M/s Adhunik Corporation. The case of the Revenue is that M/s S. F. Forgings has not manufactured forgings out of the inputs on which credit has been availed and shown to have exported forgings through M/s Bankey Behari Commercial. On the basis of this, the export benefit was also denied and penalties were imposed. This show-cause notice was adjudicated by two different adjudicating authorities. In the case of M/s S. F. Forgings, Kishan Dhanuka and Adhunik Corporation, the adjudication order was passed by the Commissioner of Central Excise, Kolkata II and in the case of M/s Bankey Behari Commercial, the adjudication order was passed by the Commissioner of Central Excise, Kol.I, though the case of the Revenue is based on the same investigation and a common show-cause notice was issued to all the four appellants.
9. We also find that the copies of documents were now supplied to the appellants in pursuance to the order passed by the Tribunal during pendency of the present appeals. The appellants submitted that now the copies of all the documents are received by them.
10. In view of the above facts, we find that the matters require re-consideration by the adjudicating authority afresh. The impugned orders are set aside and the matter is remanded to the adjudicating authority for denovo adjudication. the appellants were directed to file reply to show-cause notice within a period of two weeks from today, thereafter, the adjudicating authority will pass an order afresh after affording an opportunity of hearing to the appellants.
11. We also note that as the case of the Revenue is based on investigation in pursuance to which one show-cause notice was issued to all the appellants, therefore, it is directed that the proceedings initiated under a common show-cause notice are to be adjudicated by one adjudicating authority. The adjudication proceeding be entrusted to one adjudicating authority after taking necessary approval from the competent authority.
12. Appeals are disposed of by way of remand.
(Dictated and pronounced in the open Court)
Sd/ Sd/
(M. VEERAIYAN) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
5
Ex. Appeal Nos.69,70/08, 46/09
& 40/08