Custom, Excise & Service Tax Tribunal
Shri Vikas Kansal, Proprietor vs Cce, Delhi-Ii on 13 June, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI-110066 COURT NO. IV Date of hearing: 13/06/2016 Appeal No. E/1936-1938/2008 [Arising out of Order-in-Appeal No. 59-61/CE/DLH/2008 dated 09.06.2008 passed by Commissioner of Central Excise (Appeals), New Delhi-II] For Approval and Signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) 1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes M/s. Impaq Electronics Pvt.Ltd. Shri Santanu Bhattacharya, Director Shri Vikas Kansal, Proprietor Appellant Vs. CCE, Delhi-II Respondent
Appearance: Shri N. Mullick, Advocate for the appellant Shri M.R. Sharma, DR for the respondent.
Coram: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Final Order No. 52290-52292/2016 Per: Archana Wadhwa After hearing both the sides for some time, we find that the appellant M/s. Impaq Electronics Pvt. Ltd, during the relevant period was engaged in the manufacture of UPSS and inverters and static constant voltage transformers. Their factory was visited by the Central Excise Officers on 18/7/2000 and verifications were made. As a result, the records maintained by the appellant were seized under a Panchnama dated 18/7/2000. The scrutiny of the records led the officers to believe that the appellant has been indulging in clandestine activities. Accordingly, based upon the same as also the evidences collected during the post seizure investigation, proceedings were initiated against all the three appellants vide show cause notice dated 2/11/2014. Immediately thereafter the appellant vide their reply dated 1/10/2001, sought for the photocopies of the relied upon documents, so as to enable them to file their defence reply.
2. The table of date-chart produced in the impugned order of the Original Adjudicating Authority shows that opportunities to procure photocopies were being repeatedly given by the Adjudicating Authority and the appellants were also visiting the office and getting the photocopies of the documents. The supply of the documents was not completed till 2006-07, in spite of the number of opportunities having been granted to the appellants. Thereafter, the Adjudicating Authority took up the matter for adjudication and decided the same against the assessee. Appeal against the said order also did not succeed before Commissioner (Appeals).
3. Hence, the present appeals.
4. The appellants grievance is that though they have visited the office of the concerned person on various dates for getting the photocopies but still all the photocopies could not be procured by them. On some dates, the time was less and on the other, they were advised to come on some other day. In this scenario, Ld. Advocate submits that various dates of personal hearing fixed by the Adjudicating Authority are also of no avail inasmuch as in the absence of the relied upon documents and the resumed documents, they could not prepare their defence reply and file the same. As such the impugned orders having been passed in the absence of the assssees, are violative of principle of natural justice and are liable to set aside on the same ground.
5. While examining the above stand of Ld. Advocate, we note that the Adjudicating Authority, has on some occasions, fixed the same date of personal hearing, immediately after the date which was given to the appellants for collection of the photocopies, thus, defeating the very purpose of the grant of hearing. Number of personal hearing given by the Adjudicating Authority is not the guiding factor for examining the violation of principle of natural justice but it is the effective and reasonable opportunities of hearing which have to be examined. As per the Ld. Advocate, the notice for the last time hearing mentioned in the chart were never received by them and they have also filed an affidavit to that effect. Our attention is also drawn to the last letter dated 18/5/2006 addressed by the assessee indicating that while most of the documents have been procured by them but a few important documents are still to be received and they should be given another opportunity to get the photocopies of the same.
6. On the other hand, the Adjudicating Authority has blamed the assessee by holding that in spite of the number of opportunities having been given to them, they have not able to get the inspection of the records completed and taking all the photocopies. According to the Adjudicating Authority, this was being done by the assessee as modus operandi to delay the proceedings, with a malafide intend.
7. Ld. Advocate submits that during the relevant period, there was a lot of correspondence going on between appellant and the Revenue and as such it cannot be said that there was any malafide intent on their part to further delay the proceedings. However, on being questioned, he submits that three important documents i.e., production and dispatch register, delivery challans (some of them) and delivery advices (some of them) do not stand supplied to them by the Revenue. In the absence of these documents, it is not possible for the appellant to file their defence reply. Ld. Advocate at this stage, refers to various decisions as also Boards instruction laying down that relied upon documents should be immediately supplied and non-relied documents should be released.
8. He draws our specific attention to the Bombay High Court in the case of Silicon Graphics System (India) Pvt. Ltd. Vs. Union of India 2006 (204) ELT 247 (Bombay) laying down that un-relied upon documents may not be relevant for department but the same may be relevant for effected party to file their reply to the show cause notice and such request cannot be held to be frivolous request. The Board vide its circular No. 171/05/96-CX dated 2/2/1996 have also observed that the documents which have not been relied upon in the show cause notice may be returned to the party.
9. After examining the matter, we find that admittedly, the impugned order stand passed in the absence of the appellants as such without observing as to who is at fault, the assessee or the Revenue, we deem it fit to set aside the impugned order and remand all the matters to the original Adjudicating Authority for de-novo consideration. Needless to say that the appellant would be provided with the production/dispatch register, delivery challan and delivery advices. For the said purpose, the appellant would place their list of documents and after supply of documents, the appellants would be given a period of 1 month to file reply. The said exercise should be done by the Revenue within a period of 2 months from today and after supply of documents, the appellants would be given one month period to file their reply on record.
10. All the three appeals are disposed of by way of remand.
(Dictated and pronounced in the open court) (Archana Wadhwa) Member (Judicial) (V. Padmanabhan) Member (Technical) Ritu 5