Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2023 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 1315 - AT - Central ExciseValuation - adopting a lesser price than the price at which similar goods were sold by the said consignment agents on that date and place of removal during the period 01.07.1997 to 31.03.2001 - place of removal - price declaration as required under Rule 173C of erstwhile Central Excise Rules, 1944 - HELD THAT:- The show cause notice is dated 25.07.2002. It is not disputed that the appellant had filed price declaration as required under Rule 173C of Central Excise Rules, 1944. However, the department noticed some price variation for certain invoices in regard to clearance of goods to consignment agents for which the demand has been issued - It is seen that due to non-availability of certain invoices the department has adopted the nearest comparable price. The appellant has been in continuous litigation against the demand of duty. It has been their consistent view that the quantification of demand is incorrect and they have discharged the duty as applicable during the material time. It is also their contention that they have been requesting the department to furnish documents relied upon by the department for quantification of the duty. Undisputedly, the original documents have been taken by the department during the investigation. It is seen that the direction of the Tribunal has not been complied by the department. The appellant had filed RTI application and in the reply dated 17.01.2018, the department has stated that the documents are not readily available. However, the de novo order has been passed by the adjudicating authority on 29.05.2018 - It cannot be understood how the department has been able to pass the de novo order without perusing the relied upon documents if the documents were not available. In case, the documents were available, the same ought to have been supplied to the appellant before passing the order. In the personal hearing dated 08.05.2018, the counsel appearing for the appellant has stated before the adjudicating authority that appellant has not received the required documents to put forward their defence with regard to the error in the quantification by the department. There is nothing to conclude that the documents (especially final sale invoices) were not taken away by department. In fact it is expressly stated in the SCN that documents were taken by the department. The appellant has been consistently contending that they have paid Rs.18,81,1515/-. Commissioner (Appeals) in the earlier round of litigation after perusal of available records accepted this contention of the appellant and ordered for appropriation of Rs.18,81,515/- and so also reduced the penalty to Rs.7,91,568/- holding that the balance differential duty payable by the appellant would be only Rs.7,91,568/-. Taking all these aspects into consideration we do find that there is some confusion with regard to the quantification of the duty. If the Department had obtained original records of the appellant at the time of inspection / investigation, these records ought to have been returned to the appellant after retaining the photo copy. It is forthcoming from records that appellant has not been able to sufficiently put forward their defence due to non-supply of relied upon documents. This is indeed violation of principles of natural justice. The impugned order is modified - the duty demand to the tune of Rs.18,81,515/- is upheld and the balance is set aside - the penalties imposed are entirely set aside - Appeal allowed in part.
|