Custom, Excise & Service Tax Tribunal
M/S. Kay Jay Forgings Pvt. Ltd vs Cce, Ludhiana on 14 August, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 53377 of 2014-EX[SM]
Excise Misc. Application No. 53792 of 2014-EX[SM]
[Arising out of Order-In-Appeal No. CHD/64/14/APPL/CUS/D/Camp CHD/ 2013-2014 dated 31.3.14 passed by Commissioner of Central Excise & Customs (Appeals), Chandigarh]
For approval and signature:
Honble Mr. Rakesh Kumar, Technical Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. Kay Jay forgings Pvt. Ltd. Appellants
Vs.
CCE, Ludhiana Respondent,
Appearance:
Shri Vickrant Kackaria, Advocate for the Appellants Shri M S Negi, DR for the Respondent Date of Hearing /Decision: 14.08.2014 ORDER NO . FO/ 53359 /2014-SM(Br) Per Rakesh Kumar:
This is an application for early hearing of the appeal No. E/53377/14 filed by the appellant against order-in-appeal dated 31.3.14 passed by Commissioner of Central Excise (Appeals), New Delhi. The period of dispute in this case pertains to June, 1998 to September 1999. The appellants are the manufacture of Automobile parts. The allegation against them is that without receiving any material, they have availed the Cenvat credit on the basis of bogus invoices and have shown the sending Cenvat credit availed inputs to job workers for further processing and return thereof while no material has been sent to job workers. It is on this basis, Cenvat credit demand of Rs.5,16,587/- was confirmed against them along with interest with imposition of equal amount of penalty vide order-in-original dated 25.3.04 passed by Addl. Commissioner. The Cenvat credit demand against the appellant was based on the basis of number of documents as mentioned in the show cause notice dated 27.5.03 and the appellants grievance was that the document had not been supplied to them. For this reason only, on appeal being filed before Commissioner (Appeals), against the Jt. Commissioner order, Commissioner (Appeals) vide order-in-appeal dated 27.9.04 set aside the order of Jt. Commissioner and allowed the appeal on the ground that relied upon documents had not been supplied.
2. Commissioner (Appeals) in this order while allowing the appeal observed that he fully agrees with the contention of the appellant that supply of documents was required to file proper reply to the show cause notice and to ascertain as to on what grounds, the charges were framed and from where the figures and facts have been taken and that in the absence of such documents, the appellants were not in a position to defend themselves and this is clear cut case of denial of natural justice. The department challenged this order of the Commissioner (Appeals) before the Tribunal and the Tribunal vide Final Order No. 1266/09 EX dated 11.11.09 remanded the matter to the original adjudicating authority with directions to supply the required documents to the assessee and give him an opportunity of being heard in the matter and thereafter pass appropriate order afresh in accordance with the provisions of law. In denovo adjudication proceedings, in pursuance of Tribunals order dated 11.11.2009, the adjudicating authority vide order in original dated 30.3.11 dropped the proceedings for non-supply of relied upon documents. In para 3.7 of this order dated 30.3.11, the Additional Commissioner observed that to give natural justice, all out efforts have been made and no stone was left unturned to trace out the file containing the relied upon documents, but the department could not trace out the relevant file containing the relied upon documents and therefore, relied upon documents could not be supplied to the assessee and on this basis, he dropped the proceedings.
3. The above order of the Additional Commissioner was reviewed by the Commissioner and Revenues appeal was filed before Commissioner (Appeals). The Revenues appeal was filed on the ground that relied upon documents are available and can be provided to the Appellant. Another ground of appeal was that the adjudicating authority has not considered the statement of Shri Aklesh Sharma, authorised signatory of M/s. Kay Jay Forgings Pvt. Ltd. wherein he has confessed the factual position that they had arranged bills for steel plates and rounds through broker just to avail Modvat credit and no material had actually been received by them and the adjudicating authority has failed to consider the statement which is corroborated by the statement of Shri Surinder Mahenderu, Proprietor of M/s. Nicks India. Commissioner (Appeals) vide order in appeal dated 3.4.14 remanded the matter to the adjudicating authority on the ground that the issue of supply of relied upon documents stands substantially complied with as the appellant have been supplied with the statement of Shri Surinder Mahenderu, proprietor of M/s. Nicks India. Commissioner (Appeals) also observed that the respondents mentioned that certain other documents such as verification report of stocks, job work challans, copy of statement of Aklesh Sharma etc. have not yet been provided by the department and officer representing the department informed that these copies can be made available to the assessees. Against this order of the Commissioner (Appeals), this appeal has been filed and the appellant have filed the application for early hearing on the ground that the matter pertains to 1998-1999 and inspite of repeated directions, the department has not supplied relied upon documents.
4. Heard both sides. Since, after hearing this matter for some time, I am of the view that this appeal can be finally disposed of with the consent of both the sides, the matter is heard for final disposed.
5. Both sides agree that except for statement of Shri Surinder Mahenderu, proprietor of M/s. Nicks India, no other documents have been supplied and in the first round of appeal before the Tribunal, relied upon documents had not been supplied. . The fact of non supply of relied upon documents is clear from the observations of the Commissioner (Appeals) in para 11 of his order wherein, after mentioning the appellants plea that certain relied upon documents such as verification report of stocks, job work challans and copy of statement of Aklesh Sharma have not been supplied and that the departments officer representing the department informed that these copies can be made available to the assessee.
6. Shri Vickrant Kackria, Advocate the learned counsel for the Appellant pleads that while the Commissioner (Appeals) judgement remanded the matter, in terms of order of the Honble Punjab and Haryana High Court in the case of CCE, Jalandhar vs. B C Kataria [2008 (221) ELT 508 (P&H) Commissioner (Appeals) has no power to remand after deletion of power from Section 35A(3) of Central Excise Act, 1944 by amended made by Finance Act, 2001. He however, has no objection if the matter is remanded by the Tribunal to the original adjudicating authority if all the relied upon documents are supplied to the Appellant. In view of this, Shri M S Negi, learned DR has no objection if the matter is remanded to the original adjudicating authority and he undertakes that this time, all the relied upon documents would be supplied.
7. In view of above, the impugned order is set aside and the matter is remanded to the original adjudicating authority for de novo adjudication on merits after supplying all the relied upon documents to the appellants granting that personal hearing. The appeal as well as Misc. application stands disposed of in the above terms. Since the matter is very old, the documents should be supplied to the appellants within one months time and thereafter the matter should be decided by the original adjudicating authority within 3 months time.
(Dictated & pronounced in the open Court )
( Rakesh Kumar ) Member(Technical)
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