Custom, Excise & Service Tax Tribunal
Bajaj Industries vs Commissioner Of Customs (Adjn), Mumbai on 14 August, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. II Application No. C/S/1168 to 1171, 1199, 1200/08 In Appeal No. C/761 to 764, 775, 776/08 (Arising out Order-in-Original No. 60/2008/CAC/CC/KS dated 31.3.2008 passed by the Commissioner of Customs (Adjn), Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr.K.K.Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see 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 of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Bajaj Industries Madhavdas Wanwari Tulsidas Wanwari Ramesh Wanwari D.H. Patkar & Company V.D. Patkar Appellant Vs. Commissioner of Customs (Adjn), Mumbai Respondent Appearance:
Shri V.S. Nankani, Advocate for appellant no. 1 to 4 Shri A.V. Naik, Advoate for appellant no. 5 &6 Dr. Y.D. Banga, SDR for the respondent CORAM:
Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri K.K.Agarwal, Member (Technical) Date of hearing : 14.8.2008 Date of decision : 14.8.2008 O R D E R No:..
Per: Shri M.V. Ravindran, Member (Judicial) All these stay applications are directed against the waiver of pre-deposit of the amount of duty confirmed and penalties imposed by adjudication order no. 60/2008/CAC/CC/KS dated 31.3.2008.
2. Since all these appeals and stay petitions are arising out of the same impugned order, they are being disposed of by a common order.
3. After hearing both sides for some time on stay petitions, we are of the opinion that the appeals itself could be disposed of at this juncture as a short point of violation of principles of natural justice in not handing over the relied upon and non-relied upon documents is involved. Accordingly, we waive the condition of pre-deposit of the amounts involved and take up the appeals itself for disposal.
4. Ld. Counsel appearing for the main appellant i.e. Bajaj Inds. in appeal no. C/761/08 draws our attention to order in original and more specifically the defence put up by them as recorded by the adjudication authority. He draws our attention to para 39 (ix). It is his submission that the last letter written by the Commissioner is on 21.2.2008 directing the appellants herein to collect the copies of the relied upon documents. It is his submission that the impugned order is passed without giving them a hearing notice. To substantiate this proposition, he draws our attention to the letters written by the appellant dated 27.2.2008, 26.3.2008 and 1.4.2008, wherein various documents were sought for and they have also mentioned specifically which are the missing documents required by them for defending the case before the authority.
5. It was also submitted that in an identical case in respect of Unique Processors P. Ltd. the Tribunal vide order dated 21.1.2008 remanded the matter back to the adjudicating authority to reconsider the issue on the ground of non-supply of copies of documents relied upon by the revenue.
6. We have considered the submissions made by both sides and perused the records.
7. Confirmation of demand in this case is arising on the ground that there was a difference of weight on the original shipping bill and the EP copy of shipping bill presented to the authority. Based upon the difference of the weight and upon the test certificate procured by the revenue from SASMIRA the revenue has calculated the non-utilised quantity of the inputs which were imported duty free and demanded the duty foregone by the revenue. We find from the records that the main appellant Bajaj Inds. has been requesting the authorities for giving copies of the relied upon, non-relied upon documents, test reports also inspection of records. We also find that the revenue authorities vide letter dated 21.2.2008 directed all the noticees to approach the Commissioner of Customs (Preventive), Mumbai for collection and inspection of record as sought by them. We also find that main appellant immediately approached the concerned authority to do so. It is submission of the counsel for Bajaj Ind. that till date they have not received the said copies which were asked by them vide letter dated 26.3.2008 and followed up by letter dated 1.4.2008. It has been decided by various orders of this Tribunal that non-supply of relied upon documents/non-relied upon documents by the department amounts to violation of principles of natural justice, is squarely applicable in this case also. Accordingly, we hold that the impugned order has been passed in violation of principles of natural justice. We therefore, set aside the same and remand the case for fresh decision, preferably within 6 months of the receipt of this order. The Jurisdictional Commissioner will furnish the copies of all documents as has been sought by the appellants herein. Ld. Commissioner will grant a personal hearing to the appellants before coming to any conclusion. Since we are setting aside the entire order-in-original, all the issues are kept open. Appeals allowed by way of remand.
(Dictated in Court) K.K.Agarwal M.V. Ravindran Member (Technical) Member (Judicial) sr 4