Custom, Excise & Service Tax Tribunal
M/S. Basuki Synthetics Pvt. Ltd vs Cce, Jaipur-Ii on 14 September, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066 COURT NO. II Central Excise Appeal Nos. 2083, 2621-2622/2012-SM [Arising out of Order-in-Appeal No. 227-229/KKG/CE/JPR-II/10 dated 27.4.2010 passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur] Date of Hearing/decision: 14th September, 2012 M/s. Basuki Synthetics Pvt. Ltd., Shri Jakir Khan, Factory Manager Shri Ravi Pacheriwal, Director Appellants Vs. CCE, Jaipur-II Respondent
Present for the Assessee : Shri O.P. Agarwal, Advocate Present for the Respondent : Shri Bharat Bhushan, D.R. Coram: Honble Shri D.N. Panda, Judicial Member;
FINAL ORDER NO. ________________ Per D.N. Panda:
Shri Agarwal, learned Authorised Representative for the assessees submits that although investigation in this case was done on 17.12.2004, despite repeated prayers to provide copies of documents seized from the appellants nothing was supplied to them. He draws attention to Para 2.8 of adjudication order to submit that summary of statement recorded from Shri Ravi Pachriwal Director, shows that challan book seized under Annexure B-1 to B-6 was signed by Shri Pachriwal in token of his perusal. When that was the position and in spite of repeated prayer to provide copies of challans by the appellants the authorities provided blank challans to the appellant which were and without signature of the appellants. This was specific submission before the learned appellate authority below as recorded in Para 14 of the appellate order dated 30.3.2012. He also submits that it was again pleaded before that authority to direct the department to produce seized challans for examining veracity thereof. But that was in vain. He also submits that such important pleadings were not dealt by the appellate authority in his order.
2. It is also submission on behalf of the appellants that because the department failed to provide the material used against the appellant, they were deprived of the course of natural justice to lead their defence. This may also be appreciated that investigation took three years to issue show cause notice and such a negligent approach of the department had not been tolerated by Apex Court while deciding the case of Orissa Bridge & Construction Corpn. Ltd. vs. CCE, Bhubaneswar 2011 (264) ELT 14 (S.C.) and further followed in the case of Gammon India Ltd. vs. Commissioner 2002 (146) ELT A313 (S.C.). He further reiterated that ratio of the Apex Court has also been followed by the Tribunal in the case of CCE, Kolkata-II vs. Giriraj Industries 2008 (223) ELT 640 (Tri.- Kol.) which has been affirmed by the Honble High Court of Calcutta as reported in 2009 (242) ELT A84 (Cal.).
3. On the aforesaid ground he further submitted that when the appellants were deprived of from course of natural justice by the department because of consistent failure to produce sealed documents before the appellate authority they shall not be liable to consequence of adjudication.
4. On the other hand, learned D.R. defends the appellate order on the ground that the appellants plea of blank challans does not survive in view of the material produced before the appellate authority which was dealt by the authority in page 11 of the appellate order.
5. This is second case, I have been seeing after the case I had dealt in the case of CCE, Kolkata-II vs. Giriraj Industries (supra) which was affirmed by the Honble High Court of Kolkatta where negligence of investigation has come to record. If investigating authority fails to provide copies of seized documents and if the documents provided was altogether different from the seized documents that deprives the litigant from the course of natural justice. Not only injury is caused to interest of justice but negligent officers make the investigation result fatal.
6. Once the material used against the appellants could not see the light of the day and 8 years have already been passed there may not serve any useful purpose, if the matter is remanded back for redoing adjudication. Being guided by the Apex Court decision as aforesaid litigation should brought to an end allowing the appeal. Consequently, all the three appeals are allowed. Consequential relief, if any, shall follow in accordance with law.
(Dictated & pronounced in the Open Court) (D.N. PANDA) JUDICIAL MEMBER RK 4 E/2083, 2621-22/2010-SM