2023 (5) TMI 972

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....0.03.2012 passed by the Commissioner of Central Excise, Kolhapur. By the impugned order, following has been held:- "ORDER i) I confirm the demand of Rs. 1,29,16,409/- (Rs. One Crore Twenty Nine Lacs Sixteen Thousand Four Hundred Nine only) under Sec. 11A(2) of Central Excise Act, 1944. The amount already paid of Rs. 1,00,00,000/-, is appropriated against the confirmed demand. ii) I order to pay interest at appropriate rate on the confirmed demand under Sec. 11AB of Central Excise Act, 1944. iii) I impose a penalty of Rs. 1,29,16,409/- (Rs. One Crore Twenty Nine Lacs Sixteen Thousand Four Hundred Nine only) on M/s Shreyas Intermediates Ltd. (100% EOU) under sec. 11AC of Central Excise Act, 1944. Further I give a....

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....o why: i) the Central Excise duty amounting to Rs.1,29,16,409/- [rupees one crore twenty nine thousand sixteen thousand four hundred nine only (BCD+CVD+Edn.Cess+SAD)] as applicable should not be demanded and recovered from them in accordance with provisions of proviso to Section 11A(1) of Central Excise Act, 1944 along with interest thereon in accordance with provisions of Section 11AB of Central Excise Act, 1944. ii) the amount of Rs.1,00,00,000/- (rupees one crore only) paid voluntarily vide Cenvat Credit Accounts detailed in Table No. 15 herein-above should not be adjusted against the amount demanded under Section 11A(1) of Central Excise Act, 1944. iii) Penalty should not be imposed under Section 11AC of Centr....

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....s of the date of receipt of the notice or if they fail to appear before the adjudicating authority when the case is posted for hearing, the case will be decided exparte on the basis of evidences available on record." 2.3 This show cause notice was replied by the appellant vide letter received in the office of the adjudicating authority on 24.08.2010. Thereafter the matter was adjudicated by the impugned order. Aggrieved appellants are in appeal. 3.1 We have heard Shri Bharat Raichandani, Advocate for the appellants (none appeared for the appellant in appeal No. E/1039/2012) and Shri Deepak Bhilegaonkar, Additional Commissioner, Authorised Representative for the Respondent. 3.2 Arguing for the appellants, learned counsel referred to....

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....udicial decisions and denied all the charges leveled against them in the said show cause notice. Further they prayed that the charges namely, (i) removal of input in the guise of final product (i) shortage of input and the final product and (iii) removal of goods more than once under the same invoice, are charges of clandestine removal which is a serious charge not proved by merely writing paragraph in the show cause notice or on the basis of statement of employee or of third person or on the basis of private diary but are to be established on the basis of the affirmative evidence or positive evidence and also supported by corroborative evidence and should not be based on the suspicion or assumption or presumption and prayed that in absence....

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....quence and got evidentiary value. The judments quoted by SIL-EOU in their reply are not acceptable." 4.4 It appears that the entire order has been passed without considering any submissions made by the appellant, which runs into 83 pages. Though the statements of various persons have been relied upon by the Commissioner, specifically of Shri Kamlesh S. Patil, his cross-examination though asked for has not been allowed or rejected in the impugned order. We find that the impugned order is totally a non-speaking order passed in violation of the principles of natural justice and cannot be sustained. Adjudicating authority is obligated under law to consider the submissions made in response to the show cause notice and any order passed without....