Customs, Excise and Gold Tribunal - Mumbai
Braco Electricals And Ramesh Sobhani vs Commissioner Of Central Excise on 24 November, 2003
Equivalent citations: 2004(167)ELT329(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. After hearing the stay application for some time it transpired that the main appeal could be taken up for disposal on a very small point of non compliance of the principle of natural justice. Therefore after waiver of predeposit and with the consent of both side,. the main appeal is taken up for disposal at this stage.
2. A case of unaccounted manufacture and non-duty paid clearance of goods was made out by the officers of Central Excise Commissionerate. A show cause notice dt. 1.4.2002 was issued to the appellants and the Commissioner vide the impugned order dt. 12.5.2003 has confirmed the duty demand and imposed penalties and hence these appeals.
3. It is the plea of the appellant that cross examination of certain witnesses sought by them were not granted. The Commissioner vide paragraph No. 24.11.1 has observed that no plea for cross- examination was made, we find and it was shown to us from the paper book filed which has a letter dt. 10.1.2003 by the Advocate to the Commissioner, which makes impressive pleas on the need of cross- examination. Therefore the Commissioners finding that no cross- examination of the persons whose testimony was recorded not sought does not appear to be correct on facts. The grant of cross examination especially in cases made out of clandestine removal, i.e. unaccounted manufacture, based on various documents statements enclosed by the investigators would require the testimony to be tested in cross examination. In any case, reasons for the denial of the cross examination should be available in the impugned order. We find no such reasons for the denial coming forth in the impugned order. We therefore find that the order suffers from the vice of denial of principles of natural justice.. Such an order cannot be upheld and is required to be set aside.
4. We also find a curious method which is impermissible adopted by the Commissioner inasmuch as having remitted the appreciation of the evidence to be conducted as regards co-relation with the documents, by an some one, other than the adjudicator. We cannot approve such an order and method. The adjudicator himself has to appreciate the material on co-relation, thereafter consider the submissions and arrive at deailed detailed and complete findings on the same. The order coming to a conclusion that the appellants could co- relate the same before someone else and therefore there would be unaccounted production and non duty paid clearance cannot be upheld.
5. In view of our findings, we set aside the order and remand the matter back to the Commissioner to be adjudicated after extending a reasonable opportunities to the appellants who shall be free to make submissions on all aspect of the matter as of during the period.
6. Appeals allowed by way of remand.
(Pronounced in Court)