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SUPER FORGINGS & STEELS LTD. Versus COMMISSIONER OF C. EX., KOLKATA-IV

2007 (12) TMI 343 - CESTAT, KOLKATA

Adjudication - incurable defect - Principles of Natural justice - non-speaking order - non-cooperative attitude - E/360/2007 - A-2078/KOL/2007 - Dated:- 18-12-2007 - Dr. Chittaranjan Satapathy, Shri D.N. Panda, JJ. REPRESENTED BY : Shri R.N. Das, Sr. Advocate and Smt. Urmitta Datta (Sen), Advocate, for the Appellant. Shri Vineet Ohri, Jt. CDR, for the Respondent. [Order per : D.N. Panda, Member (J)]. - The Appellant came in appeal against the Order of Adjudication dated 31-3-2007 passed by learn .....

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issued on 27-7-2004, i.e. after three years of the search, the adjudication was done nearly three years after issue of the Show-cause Notice. In the whole period of six years, the cry of the Appellant was to follow natural justice supplying the relevant documents relied upon by the Revenue for issuance of Show-cause Notice and also to adjudicate the matter. The cry of the Appellant has never been heard by the lower authorities. They only with the plea of non-cooperation avoided grant of providin .....

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hat the impugned Order was based on tender documents, is vividly clear from paras 4.8 and 4.10 of the impugned Order. When learned Authority below in para 4.13 mentions that there were adequate and cogent evidences on record besides circumstantial proof and other material factors in support of the allegations made in the Show-cause Notice, the Appellant is not at all liable to be debarred from natural justice. Learned Authority below also discarded the retracted statements discussing the aspects .....

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ow-cause Notice being a very vital source of defence during adjudication, and the Appellant having been denied to make a reply, the impugned Order is unsustainable. Learned Sr. Counsel submitted that in view of the legal infirmity arising out of incurable defect and violation of natural justice, the demand raised should not be realised during pendency of Appeal. He, therefore, prayed for remand of the matter for grant of full and fair opportunity to the Appellant in regard to just and reasonable .....

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rfered. 4.1 Heard both sides and perused the record. We have a firm belief that the rules of natural justice are not a straight jacket formula and cannot be stretched too far, as held by the Hon ble Apex Court in the following judgments :- (i) 2004 (6) SCC 311 - Bar Council of India v. High Court of Kerala; (ii) 2004 (6) SCC 325 - Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav; (iii) 1994 (5) SC 280 - The Maharashtra State Financial Corporation v. M/s. Suvama Board Mills, JT; ( .....

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pellant deliberately fails to co-operate for the adjudication. In that circumstance, the remand of the matter becomes uncalled for. However, in the present case, we notice that the seized documents which are proposed to be used against the Appellant should be brought to light and copies thereof, should be supplied to the Appellant for appropriate defence plea. There is no doubt that merely six years have elapsed after the search was conducted. But the matter calls for remitting back to learned A .....

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ons, the Department cannot press its foot to cross the legal defence or the documentary evidences available to the aggrieved. It is fully the choice of the aggrieved to raise all defences, which are available to him under the law and learned Authority of the Department would only consider the defences and reject the same, if the same are not in accordance with law or are based on mis-construction of the factual aspect or mis-conception of law. When the documents are possessed by Department, whic .....

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