TaxTMI 
TaxTMI 
2021 (1) TMI 752
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....CL), Unit-I & II and M/s Rashmi Cements Ltd, Unit-III; these units were engaged in the manufacture of 'Pig Iron, MS Billet, TMT Bar, MS Wire Rod, Sponge Iron, Portland Cement etc' ; Shri Sanjay Patwari, Shri Surendra Jha and Shri Salil Roy being Directors of M/s. Rashmi Metaliks Ltd, during the material period i.e.October, 2011 to January, 2013); Shri Sanjib Kr. Patwari, Shri Sunil Patwari, Shri Subhendu Biswas and Shri Dipanjan Mohata were directors of M/s M/s Rashmi Cements Ltd (M/s RCL 3. Based on information about alleged evasion of central excise duty by the appellants by way of suppression of facts and clandestine removal of finished excisable goods without payment of central excise duty and undervaluation of such goods removed during the period 2011-12 & 2012-13,officers of DGCEI conducted searches, in the factory premises of Rashmi Metaliks Ltd., Units 1 & 2 and other premises (like staff mess, alleged back offices and godown etc) in Kharagpur, during 17.01.2013 to 20.01.2013; Physical stock taking was undertaken; several documents and records were also seized. Further, Searches were conducted at the premises of buyers of Rashmi group; statements ....
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.... on 11/13/20/21-11-2017; however, Central Excise Invoices for the years 2011-12 and 2012-13 have not been returned till date. • Last PH was fixed on 15/11/2017 and in spite of repeated request no further hearing was granted even though most of the documents were returned after the personal hearing. • The appellants prepared interim reply to show cause notice on 20/12/2017 and was sent to the respondent's office on the same day; they were informed that no such replies will be entertained; therefore, the reply was sent to by speed post and courier on 20/12/2017 and a letter to this effect were also sent to the Commissioner vide letter dated 20/21-12-2017; no reply came from the Commissioner and the Principal Chief Commissioner was also informed. • The said order was issued on 20/12/2017 but actual dates of dispatch were 22/23-12-2017; they have reason to believe that the date of dispatch was shown in a mala fide manner as 20/12/2017. • In spite of their several request non-relied upon documents were not completely given by 15/11/2017 i.e, last PH fixed; this is appositely in proper and incorrect. • Though the orde....
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....m, it has been contended by Dr. Samir Chakraborty, Sr. Advocate, that the appellants had not received the complete non-relied upon seized documents/records and due to the same, the appellants were unable to reply fully to the SCNs; Learned Commissioner though expressly acknowledged the undisputed fact, kept on fixing dates for personal hearing of the case on 19.09.2017, 11.10.2017, 31.10.2017 and 15.11.2017; ultimately passed the ante dated ex-parte impugned order; Commissioner has even not considered the interim replies filed by the appellants while passing the impugned order; this act being violative of the principles of natural justice, has completely vitiated the impugned order and has rendered the same illegal, invalid and ab initio unsustainable. 5.1. It is an undisputed fact that several un-relied documents, as detailed in the appellants' letter dated 15.11.2017 to DGCEI and intimated to the Commissioner by letters dated 23.11.2017 and 20.12.2017, had not been returned to the appellants by the DGCEI in spite of repeated requests, although more than one (1) year had passed since the issuance of the show cause notice. The Commissioner should have appreciated that such an ac....
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....t be said to be unreasonable. Even if the Commissioner thought that the request of one month was unreasonable, at least a reasonable time could have been given to the petitioner to enable him to file reply to the show cause notice and then the order-in-original could have been passed." 6. Shri K. Chowdhury, Ld. A.R. appeared on behalf of the Department and reiterated the findings of OIO.He submits that the only grievance voiced by the appellants at the time of hearingwas that natural justice was denied to them inasmuch as the Learned Commissioner passed the impugned Order ex-parte without considering the interim reply and without considering the fact that they could not file complete reply to the Show Cause Notice, as they did not receive all the non-relied upon documents from the DGCEI before the impugned Order was passed; the order be set aside on this count. 6.1 Countering the allegation that Natural justice was not denied to the appellants, learned Authorised representative, submits that the Learned Commissioner has given elaborate finding as to why he had to decide the cases ex-parte; Indisputably, learned Commissioner took adequate steps to ensure that....
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....documents which were lying at DGCEI and that DGCEI were requested to look into the matter on priority so as to prevent any type of further plea taken by the Noticees. Learned Commissioner finds that the Noticees were given last and final of Personal Hearing on 15.11.2017; none of the Noticees appeared on that day; noticees, in their reply dated 15.11.2017, have intimated that they have received some documents from the DGCEI office on 11.11.2017; noticees were requested to collect the copies of non-relied upon documents on Monday i.e. on 13.11.2017 from the DGCEI office; noticees informed commissioner that on receipt of non-relied upon documents, they need at least 5 (five) days' time to reconcile as to whether all documents, whether relied upon or non-relied upon have been received and in case the documents were handed over, then they require at least 2 (Two) months' time to go through the notice to submit reply; learned commissioner also that his office received a copy of the letter dt.13.11.2017, issued by the DGCEI addressed to the Noticees, wherein it was intimated that the date was fixed on 09.11.2017 to verify and to receive the Non-relied upon documents....
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....AIR 1957 SC 842) have held that an adjudicating authority is entitled to proceed ex-parte if the person concerned does not appear before it in response to notice issued by it. 10. We find that in the instant case investigation was initiated in January 2013 and the show Cause Notice came to be issued in September 2016. It is seen that the appellants have written a letter dated 27-10-2016 to the commissioner requesting for supply of relied upon and non-relied upon documents; commissioner fixed a personal hearing on 12-9-2017; appellants, vide letter dated 18-9-2017, requested that at least two months of time may be given to file a reply after all the documents are supplied. Commissioner wrote a letter dated 26-9-2017 to DGCEI requesting them to hand over non-RUDs to noticees, either in original or photocopies and intimated the appellants that next PH was fixed on 11.10.2017. The appellants, vide letter dated 6-10-2017, intimated the Commissioner that they have not received any communication from DGCEI fixing the date for return of non-RUDs and again requested for at least 2 months' time to file reply from the date of receipt of records and docum....
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....re not given requisite documents and enough time to represents themselves and the order was passed ex-parte. 11. We find that Apex Court in the case of Kanwar Natwar Singh Vs Director of Enforcement held that 24 The concept of fairness may require the Adjudicating Authority to furnish copies of those documents upon which reliance has been placed by him to issue show cause notice requiring the noticee to explain as to why an inquiry under Section 16 of the Act should not be initiated. To this extent, the principles of natural justice and concept of fairness are required to be read into Rule 4(1) of the Rules. Fair procedure and the principles of natural justice are in built into the Rules. A noticee is always entitled to satisfy the Adjudicating Authority that those very documents upon which reliance has been placed do not make out even a prima facie case requiring any further inquiry. In such view of the matter, we hold that all such documents relied on by the Authority are required to be furnished to the noticee enabling him to show a proper cause as to why an inquiry should not be held against him though the Rules do not provide for the s....
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....f the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them" [see Kanda v. Government of Malaya - [1962] AC 322]. 11.2 We also find thatBombay High Court in the case ofSilicon Graphics System (India) Private Limited Vs UOI (supra) held that 14. Vide circular dated 13th June, 1988 issued by the Department of Revenue, Ministry of Finance, Government of India, directions have been issued to the concerned officers in relation to the seized documents and return thereof, that in order to avoid the complaints, ordinarily, the department itself should take initiative to return the documents which are not considered useful from the angle of any proceedings to be initiated against the concerned parties. Un-relied documents in the showcause notice may not be relevant for the purposes of Revenue but may be of some relevance to the affected party in preparation of the reply to the show cause notice. It cannot b....
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....adhering to rules instructions and provisions of law. It is very easy to brush aside the claims of the appellant as delaying tactics. Understandably, the charged appellants would see their interest in getting things delayed. However, department should have taken commensurate steps so that the appellants could not raise such a claim in the first instance. Understandably, replying to such a big case takes some time after receiving the records and to this extent the appellants are within their rights. We find that the revenue erred seriously in sleeping over one year, in rushing through the motions thereafter through a period of mere 2-3 months, in fixing personal hearing on 4 dates while correspondence for handing over documents is going on etc. Consequentially, the fact remains that the appellants were not provided with the RUDs/ Non-RUDs completely or in even time; the appellants were denied a right that was available to them as per Rule 24A of Central Excise Rules, 2002 and CBEC instructions contained in Circular No. 171/5/96-CX.6 dated 02/02/1996, Instruction No. 207/09 /2006-CX.6 and Circular No. 42/88-CX.6 dated 24/05/1988. Therefore, we find that they were not given opportunit....