Customs, Excise and Gold Tribunal - Mumbai
Gujarat Texspin Ltd. vs Commissioner Of Central Excise And Cus. on 9 April, 2002
Equivalent citations: 2003(160)ELT193(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. The appellants are an EOU unit. They are manufacturers of Dress materials of various kinds. They were issued a Show Cause Notice as it was found that they had disposed of certain goods viz. Waste yarn and substandard fabrics in the DTA in contravention of the rules and discharge of appropriate duty even though this was done after obtaining a permission of Development Commissioner, Kandla Free Trade Zone. It was alleged that the EOU had availed full exemption of duty of the raw material procured by them. This raw material was used in the manufacture and clearance of finished goods and on ineligible, DTA sale entitlement against deemed export, which they were not entitled. They were therefore not eligible to the benefit of exemption notification. Therefore they had contrivented provisions of Customs Act 1962, Section 11A of Central Excise Act, 1944 and duty was demanded be recovered from them on such goods illicitly removed under the guise of DTA sales. They were also asked to show cause why penalty should not be imposed under Rule 209 of Central Excise Rules, 1944 and interest not be demanded on the duties evaded. After hearing, the Commissioner confirmed the demands of duty under the provision of Section 11A(2) of Central Excise Act, 1944. He imposed penalty on the appellant company under Rule 209 read with Section 11AC and ordered the recovery of interest under provisions of Central Excise Act.
2. After hearing the stay petition and condonation of delay application for some time, it transpired that the appeal could be itself decided on the very short point of denial of natural justice as we find that the order has not been in conformity with the requirement of natural justice and law. Therefore after waiver of pre-deposit and concurrence of both sides and condoning the delay, this final order is being passed.
3. The Company Secretary appearing for the appellants, brought to our attention the fact of a written reply dtd. 21-11-2000 which has also been noted by Learned Commissioner though not considered. We find the stand taken in the reply and the subsequent submissions, during the personal hearing, were different. The Commissioner should have considered these arguments and the submissions made during the personal hearing and in the written reply on 28-12-2000. The order is delightfully silent on this aspect. We also find, that the order is not signed by the Commissioner and is attested by some other officer. Tribunal in Richimen Silks Limited, 2001 (127) E.L.T. 795 has held that the order should be signed by the Adjudication Officer which merely attested it is an invalid document. We also find that the clearance were made after obtaining the required permission of the Development Commissioner Kandla Free Trade Zone. Once the Development Commissioner has granted the permissions for DTA sales, the Commissioner was not required to sit in judgment over such permissions granted. If the department is of the view that the permissions were obtained incorrectly and were not required to be granted, they should have taken up that matter with the Development Commissioner. Only thereafter they could proceed with confirmation of the demands. Since we find that this order impugned before us has not dealt with the submissions made during the personal hearing and or also with the written submissions on 28-12-2001 and is not signed we would consider setting aside the order and remand the same back to the Adjudicator for de novo adjudication. He should grant a hearing to the appellant, after the ascertaining the views of Development Commissioner Kandla Free Trade Zone as regards the DTA permissions granted by the said authority, if clearance are to be considered ineligible. After getting the views of the Development Commissioner and after hearing the appellant on supplying him the views of the Development Commissioner, and considering all aspects & submission made an order should be passed. The appeal is allowed as remand. Stay application and COD stand disposed on.