TaxTMI 
TaxTMI 
2015 (9) TMI 462
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.... Department are that - (a) PTPL is a dummy/front company of GTC and it is the GTC who was the real manufacturer; and (b) during the period from 1-6-1991 to 31-3-1995, cigarettes involving Central Excise duty of Rs. 46,51,87,192/- manufactured in the premises of PTPL without any accountal were clandestinely cleared without payment of duty. 1.1.1 In this regard it has been alleged that while on paper, PTPL was only a franchisee of GTC engaged in manufacture of cigarettes using the brand name of GTC and PTPL selling the entire production of cigarette to GTC, PTPL was actually being controlled fully by GTC inasmuch as - (a) majority shares of PTPL were held by four companies controlled by GTC; namely - M/s. Little Rook Trade and Investment Ltd., M/s. Hindustan Commercial Company, M/s. Harvetex Engineering and Processing Co. Ltd. and M/s. Kyoto Company Commercial Ltd.; (b) GTC were closely controlling all the activities and operations of PTPL like arrangement for machines and finance, purchase of raw tobacco and other raw materials, manufacture and clearance of accounted and unaccou....
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....944 on GTC Industries Ltd.; (c) ordered confiscation of the land, building, plant and machinery of M/s. PTPL under Rule 209(2) of Central Excise Rules, 1944 with an option to be redeemed on payment of redemption fine of Rs. 32,00,000/- and (d) imposed penalty of various amounts under Rule 209A of Central Excise Rules, 1944 on Shri Sanjay Dalmia, Shri Anurag Dalmia, Shri J.P. Khetan and others. 1.4 Against the above order of the Commissioner, these appeals have been filed along with stay applications. 2. Though the matter today was listed for hearing of the stay applications only, after hearing the matter for some time, the Bench was of the view that since on account of certain serious irregularities in the order, the matter has to be remanded for de novo adjudication, the matter can be heard for final disposal. Accordingly, the requirement of pre-deposit is waived and with the consent of both the sides, the matter was heard for final disposal. 3. Shri K.K. Anand and Ms. Sujata Sherlonker, Advocates, the learned Counsels for the appellant, pleaded that, the impugned order confirmed the duty demand of Rs. 46,51,87,192/- ag....
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....he show cause notices were served on PTPL, GTC and other noticees sometimes in 1996, the relied upon documents were not supplied. There appears to be long correspondence between the appellants and the Department regarding supply of documents which appears to have continued till 2013 and still it is the plea of the appellants that all the relied upon documents and some of the non-relied upon documents asked by them have not been supplied to them. Non-supply of relied upon as well as non-relied upon documents would be violation of principles of natural justice. 7. Another plea of the appellant is that the Department's allegation of duty evasion is based on the statements of 116 persons out of which they requested for cross-examination of 60 witnesses, but still the cross-examination of only a few witnesses has been allowed and the cross-examination of a number of witnesses was not allowed. In this regard it is seen that while the Adjudicating Authority had permitted cross-examination of a number of witnesses and the witnesses had been summoned, but a number of them were either found to be non-traceable or if they were traceable, they failed to appear. In our view, the question ....
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....In cases of witnesses not covered by clause (a) of Section 9D(1), where their cross-examination has been requested by the appellants, the statements of the witnesses can be relied upon only after permitting their cross examination and as per the provisions of clause (b) of Section 9D(1). 7.2 As regards supply of relied upon and non-relied upon documents, which had been seized from the appellant's premises or from other person the same have to be supplied and if any relied upon document is not supplied, it cannot be taken into account for proving the allegation against the appellants. 8. It is also seen that duty demand of Rs. 46,51,87,192/- has been confirmed against PTPL and GTC Industries Ltd. jointly or severally and similarly penalty of equal amount has also been imposed on them under Rules 9(2), 52A, 226 and 209 of the Central Excise Rules on GTC Industries Ltd. and PTPL jointly and severally. In our view, which is based on the judgment of the Tribunal in the case of Sree Aravindh Steel Ltd. v. CCE, Trichy (supra), Rimjhim Ispat Ltd. v. CCE, Kanpur (supra) and also the judgment of Hon'ble Gujarat High Court in the case of Commissioner v. Mukesh Harlalka (order date....
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....od of three months from the date of adjudication order. This provision was applicable even in respect of the show cause notices issued prior to 26-5-1995 and which had been adjudicated on or after 26-5-1995. In view of this legal position, it was in the interests of the Department to adjudicate this matter involving duty of Rs. 46,51,87,192/- as early as possible. However, it is seen that Department has taken about 19 years in supplying the relied upon documents and still the appellant's grievance is that some of the relied upon documents asked by them has not been supplied. Even after 19 years when the matter was adjudicated, the adjudication has been done in a most careless manner. When the legal position as to whether duty demand against two or more persons can be confirmed jointly or severally and penalty on them can be imposed on jointly and severally is well settled, it is surprising as to how a senior Commissioner has confirmed this demand jointly and severally against PTPL and GTC Industries and not only this has also imposed penalty of some amount both on GTC Industries Ltd. and PTPL on jointly and severally which does not make any sense at all. Similarly, there is absolut....