Custom, Excise & Service Tax Tribunal
J.P. Enterprises vs Commissioner Of Central Excise on 29 June, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEALs NO. 431, 814, 1046, 1047, 1048, 1051, 1052, 1053, 1075, 1076 of 2002 Mum
Arising out of Order-in-Original No. 27/VPS-22/01/M-III dated 28.12.2001 passed by the Commissioner of Central Excise, Mumbai III.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.R. Chandrasekharan, Member (Technical)
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 :
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?
J.P. Enterprises
Shree Ram Fabrics
Godani Textiles
Bharat Kumar & Co.
Mohanlal Kirit Kumar
Amber Processors
Santosh B. Joshi
Banwarilal Poddar
Pyarelal Textile P. Ltd.
Surendra P. Sanganeria
:
Appellants
Versus
Commissioner of Central Excise,
Thane I and Thane II
Respondent
Appearance Shri T.C. Nair, for - Shree Ram Fabrics Advocate Shri Mayur Shroff, for - J.P. Enterprises Advocate - Pyarelal Textile P. Ltd.
-Surendra P. Sanganeria
Shri Mihir Deshmukh, for - Godani Textiles
Advocate Bharat Kumar & Co.
Mohanlal Kirit Kumar
Amber Processors
Santosh B. Joshi
Banuwarilal Poddar
Shri S.S. Katiyar, SDR
For Respondent
CORAM:
Shri Ashok Jindal, Member (Judicial)
Shri P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 29.06.2011
Date of Decision : 29.06.2011
ORDER NO.
Per Ashok Jindal
When the matter was called Shri Prakash Shah, learned Advocate who is representing the main appellant namely M/s. Amber Processors was not available in the Court therefore, the matter was adjourned to 27th July, 2011. At this stage Shri Mihir Deshmukh, Advocate appeared on behalf of Shri Prakash Shah, and all other parties requested to take up the matter today itself. Therefore, with consent of all the parties, the matters are taken up for final disposal.
2. Brief facts of the case are that M/s. Amber Processors, a division of M/s. Piramal Spinning and Weaving Mills were registered with the Central Excise department and are engaged in the processing of cotton and man-made fabrics. A show-cause notice dated 24.03.2001 was issued to all the appellants alleging the contravention of various provisions of Central Excise Rules and recovery of duty on the ground of under-valuation of grey fabrics cleared during April 1999 to September 2000 by M/s. Amber Processors. M/s. Amber Processors are filing declaration in proforma-A under Notification No. 27/92 dated 09.10.1992 wherein the merchant manufacturers declared the value of grey fabrics covered under the price declaration of the assessee and if there is any mis-declaration of the price by the merchant manufacturer the jobworker is liable to pay duty on differential amount. In this case M/s. Amber Processors is a job-worker and co-appellants namely M/s. Pyarelal Textile P. Ltd., M/s. Mohanlal Kritkumar, M/s.Godani Textiles, M/s. J.P. Enterprises, M/s. Bharatkumar & Co. and M/s. Shri Ram Fabrics are the merchant manufacturers. The allegation is that the merchant manufacturers have mis-declared the price of grey fabrics sent to the job-worker M/s. Amber Processors for processing. Therefore, case was booked against all the appellants, differential duty demand was levied for mis-declaration under valuation of price of fabrics. A show-cause notice was issued which was adjudicated and differential duty was demanded from M/s. Amber Processors and penalties were also imposed on merchant manufacturers, job-worker and Shri Santosh B Joshi, Manager of M/s. Amber Processors and Shri Surendra P Sanganeria, Co-Signatory of M/s. Amber Processors, Shri Banwarilal Poddar, Director (Marketing). Goods were also confiscated which were already redeemed on payment of duty and redemption fine.
3. Shri Mayur Shroff, learned Advocate for the appellants namely M/s. J.P. Enterprises submitted that the relied upon documents have not been supplied to the appellants. Therefore, they could not contest the case before the adjudicating authority. As the appellant is a merchant manufacturer who has sent fabrics for processing to M/s. Amber Processors and the allegation of under-valuation of fabrics is against the appellant, therefore, unless and until the contentions of the appellant are being heard by the adjudicating authority, the order for demanding differential duty is bad in the eyes of law. Hence, he prayed that, in the above events the matter may be sent back to the adjudicating authority to re-adjudicate the matter after supplying the relied upon documents to the appellant and thereafter to adjudicate the matter following the principle of natural justice.
4. He further submitted that during the adjudication proceedings he asked for copy of the relied upon documents and sought adjournment for their reply but the same was not considered by the adjudicating authority.
5. On the other hand the learned DR submitted that all the documents have been supplied to the appellants along with show-cause notice. Therefore, the contention of the appellants that they have not been supplied relied upon documents is not sustainable.
6. Heard and considered.
7. After hearing the both the sides, we find that in this case the appellants namely M/S. J.P. Enterprises and M/s. Pyarelal Textile P. Ltd. were asking the department to supply the copy of relied upon documents. Though the show-cause notice has been served on the appellants along with annexure but relied upon documents were not supplied to the appellants because the appellants were asking these documents from beginning of the receipt of show-cause notice.
8. We have seen the impugned order, the adjudicating authority has not considered the request of the appellants, which is very much relevant for adjudication of the case. If the adjudicating authority would have supplied the copy of the relied upon documents to the appellants, the appellants could have been able to reply the show-cause notice. It is on record that the request of the appellants has not been considered to put their defence by the adjudicating authority. Therefore, we hold that in this case principle of nature justice has been violated by the adjudicating authority by not supplying relied upon documents to the appellants and by not considering the appellants request for adjournment of the case. Therefore, the matter needs examination at the end of adjudicating authority.
9. In view of the above observation, we remand the matter back to the original adjudicating authority for fresh adjudication after supplying the relied upon document to M/S. J.P. Enterprises and M/s. Pyarelal Textile P. Ltd. It is pertinent to mention here that all the appellants shall be given an opportunity to present their case before the adjudicating authority. The appeals are allowed by way of remand by setting aside the impugned order.
(Dictated in open Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 2