2019 (2) TMI 1238 - AT - Central Excise

CESTAT Ahmedabad: Ex-parte Order on Central Excise Duty Set Aside

Dr Bandana Chandrashekhar Naidu, M/s. Heena Textiles, M/s. Premier Polyspin Pvt. Limited, Shri Rohit Kumar Gupta, M/s. Krishna Filaments Versus Commissioner of Central Excise & ST, Surat

The Appellate Tribunal CESTAT Ahmedabad set aside the ex-parte order demanding Central Excise duty on duty-free procured raw materials, specifically ... Demand of Central Excise duty - duty free procured indigenous raw materials (Polyester Yarn - POY) - Demand on the premise that appellant had shown exaggerated production capacity with intent to procure excess duty free raw materials and had diverted the same in the open market, without payment of duty - ex-aprte order - principles of natural justice - Held that:- The order was passed ex-parte and no hearing was conducted. The repeated request of the appellant for cross-examination of witnesses whose statements were recorded, was not geven any heed. The entire case was passed on theoretical calculation made on the basis of a formula certified by the Chartered Engineer and some statements of job workers. In these facts, it was necessary on the part of the Adjudicating Authority to provide cross-examination of the witnesses and it is mandatory under Section 9D of the Central Excise Act, 1944. The impugned order passed without allowing the cross-examination and without conducting effective personal hearing is in gross violation of principles of natural justice. Therefore, the impugned order cannot be sustained - matter remanded to the Adjudicating Authority for passing a fresh order after conducting examination/ cross-examination of the witnesses - appeal allowed by way of remand. Issues:Demand of Central Excise duty on duty-free procured indigenous raw materials based on alleged diversion without payment of duty; Violation of principles of natural justice in passing an ex-parte order; Calculation error in duty demand; Time limit for issue of show cause notice; Cross-examination of witnesses.Analysis:The judgment by the Appellate Tribunal CESTAT Ahmedabad dealt with the issue of demanding Central Excise duty on duty-free procured indigenous raw materials, specifically Polyester Yarn - POY, alleging that the appellant had shown an exaggerated production capacity to procure excess raw materials, which were then diverted in the open market without payment of duty. The appellant argued that the demand was based on theoretical calculations and requested cross-examination of relevant witnesses, including a Chartered Engineer and job workers, which was not granted, leading to a violation of principles of natural justice. The appellant also contended that the demand was beyond the permissible five-year period, citing relevant case laws. Additionally, the appellant pointed out errors in the calculation of duty demand and emphasized the lack of evidence supporting the alleged diversion of raw materials, supported by relevant judgments.The judgment highlighted the importance of providing an opportunity for cross-examination of witnesses and conducting an effective personal hearing as mandated by Section 9D of the Central Excise Act, 1944. The Tribunal found that the ex-parte order passed without allowing cross-examination and a proper hearing was a gross violation of natural justice, rendering the impugned order unsustainable. As a result, the Tribunal set aside the order and remanded the matter to the Adjudicating Authority for a fresh order, directing the examination/cross-examination of witnesses, allowing the appellant to present their defense reply, and ensuring a sufficient personal hearing within four months from the date of the order. The decision emphasized the importance of procedural fairness and adherence to legal principles in adjudicating such matters, ultimately allowing the appeals by way of remand to the Adjudicating Authority for a fair reconsideration of the case.In conclusion, the judgment addressed the issues of procedural fairness, time limits for issuing show cause notices, calculation errors in duty demands, and the necessity of cross-examination of witnesses in cases involving allegations of duty evasion. By upholding the principles of natural justice and providing a pathway for a fair reevaluation of the case, the Tribunal ensured a just and lawful resolution in the matter at hand.