Custom, Excise & Service Tax Tribunal
Shiv Shakti Re-Rolling Mills Pvt. Ltd vs Commissioner Of Central Excise on 8 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II E/S/98382 to 98387/13 & E/S/98782/13 APPEAL No.E/88960 to 88965/13 & E/89196/13 (Arising out of Order-in-Appeal No.AV(189-195)/153, 154, 155, 156, 157, 158, 159/2013 dated 12/07/2013 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 1. Whether Press Reporters may be allowed to see :No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Shiv Shakti Re-Rolling Mills Pvt. Ltd., Matsyodari Steel & Alloys Pvt. Ltd., Vijay B Mittal Appellants Satish Nandlal Rathi Satish Rathi Vs. Commissioner of Central Excise, Respondent Aurangabad Appearance:
Shri.D.R.Gadekar, Consultant, for appellant Shri.Navneet, Addl. Comm. (AR), for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 08/04/2014 Date of Decision : 08/04/2014 ORDER NO Per: P.R.Chandrasekharan
1. The appeals and stay petitions are directed against Order-in-Appeal No.AV(189-195)/153, 154, 155, 156, 157, 158, 159/2013 dated 12/07/2013 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad.
2. Vide the impugned order, the lower appellate authority has dismissed the appeals for non-compliance with the provisions of Section 35F of Central Excise Act, 1944, inasmuch as the appellants failed to comply with the pre-deposit order No.39-45/2013 dated 28/06/2013 wherein he directed the main appellants, M/s.Shiv Shakti Re-rolling Mills Pvt. Ltd. and M/s.Matsyodari Steel & Alloys Pvt. Ltd. to pre-deposit the entire amount of duty demand confirmed and the penalties imposed under Section 11AC read with Rule 25 (1) of the Central excise Rules, 2002. The lower appellate authority has also directed the other co-appellants to pre-deposit the entire amount of penalty. Inasmuch as the pre-deposit order was not complied with, the appeals were dismissed. Aggrieved of the same, the appellants are before us.
3. The learned Consultant for the appellant submits that while passing the pre-deposit order, the appellants were not heard and in fact the appellants had sought adjournment of hearing; therefore, the pre-deposit order itself has been passed violating the principles of natural justice. It is his further submission that the adjudicating authority also violated the principles of natural justice inasmuch as the opportunity for cross-examining the co-appellants were not provided and the department had relied upon statements of the co-appellants for confirmation of duty demand as well as imposition of penalties. In these circumstances, he pleads that the impugned order be set aside and the matter remanded back for denovo consideration.
4. On a specific query from the Bench, the learned Consultant submitted that they are willing to make a pre-deposit of 25% of the duty demand confirmed against the main appellants.
5. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the lower appellate authority and submits that it is incorrect to say that personal hearing was not granted while passing the pre-deposit order. The appellant was given an opportunity of hearing which they did not avail of and therefore, the impugned order is sustainable in law.
6. We have carefully considered the submissions made by both the sides.
6.1 From the records of the case, it is seen that the duty demand has been confirmed against the appellants not only on the basis of the statements of the co-appellants but also on the admission of the Director of the appellant firm itself that they had resorted to suppression of production and clandestine removal of goods. It is also on record that these statements have not been retracted. It is a settled position of law as held by the Honble Apex Court in the case of KI Pavunny Vs. Assistant Collector (HQ) Central Excise Collectorate, Cochin [1997 (90) ELT 241 (SC)] held that confessional statement of accused, if found to be voluntary can form the sole basis for conviction. The Honble High Court of Madras in the case of Assistant Collector of Customs, Madras Vs. Govindaswamy Ragupathy [1998 (098) ELT 0050 Mad)] has also held that the admitted facts need not be proved. The Honble Apex Court Court in the case of CCE, Madras Vs. Systems & Components Pvt.Ltd., [2004 (165) ELT 136 (SC)] held that once evasion of duty is admitted, the Revenue is not required to prove the case against the appellants. In view of the factual and legal position, a prima facie case against the appellant is clearly established. As regards the submission that the lower appellate authority did not grant an opportunity of personal hearing, this does not appear to be correct. In the order dated 28/06/2013 the learned lower appellate authority has clearly stated in para 5 thereof that personal hearing in the matter was fixed on 26/06/2013 and nobody turned up either from the appellant or from the respondent side during the personal hearing. As regards the plea of seeking adjournment, in the letter dated 26/06/2013, the consultant has submitted that since he is pre-occupied with the Tribunal matters on 27 & 28/06/2013, he is not in a position to attend the hearing on 27/06/2013. The case was fixed for hearing on 26/06/2013 and the request for postponement was made on 26/06/2013. Nothing prevented the appellant to appear for hearing on 26/06/2013. In these circumstances, it cannot be accepted that there was any violation of principles of natural justice by the lower appellate authority while passing the pre-deposit order. Further, the provisions mandate the appellate authority to dispose of the stay petition within a period of one month. In view of the time constrained fixed for disposal of the stay petition, the appellant cannot seek adjournment without any rhyme or reason. Inasmuch as the appellant has now offered to make a pre-deposit 25% of the duty demand confirmed, that would be sufficient to hear the appeals on merits. Accordingly, we direct the main appellants M/s.Shiv Shakti Re-Rolling Mills Pvt. Ltd. and M/s.Matsyodari Steel & Alloys Pvt. Ltd. to make a pre-deposit of 25% of duty demand confirmed against them (including the amount if any, already paid) within a period of eight weeks and report compliance by 09/06/2014 before the lower appellate authority. On such compliance, the lower appellate authority shall hear appeals on merits and pass an order after giving a reasonable opportunity of hearing. The other-co-appellants, namely, Vijay B Mittal, Satish Nandlal Rathi, Satish Rathi are not required to make any pre-deposit and their appeals shall also be heard along with the appeals of the main appellants.
7. Thus, the appeals are allowed by way of remand in the above terms. Stay petitions are also disposed of.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 6