TMI Blog2015 (3) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... ate was legally correct is not acceptable - no infirmity in the impugned Order-in-Appeal - Decided against assessee. - F.No. 195/792/11-RA - 74/14-CX - Dated:- 6-3-2014 - Shri D.P. Singh, Joint Secretary ORDER This revision application is filed by Adani Enterprises Limited, Adani House, Nr. Mithakhali Circle, Navrangpura, Ahmadabad against the Order-in-Appeal No. 06/2010/SLM(ST) dated 29-01-2010 passed by Commissioner of Customs Central Excise, (Appeals), Salem with respect to Order-in Original passed by the Additional Commissioner of Central Excise, Salem. 2. Brief facts of the case are that the applicant engaged in the business of import and export of various goods, have procured Grey Woven power Loom Fabrics from various places and have got them processed at M/s. Erode Rana Textile Processors Ltd., Erode. Then the processed fabrics have been exported to various foreign countries by the applicants. The applicants in accordance with Rule 12 of the erstwhile Central Excise Rules, 1944 read with Notification No. 31/98 CE (NT) dt. 16-02-1999 had claimed and received rebate of duty of ₹ 81, 68,999/- for the goods exported by them during the period January 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government on the following grounds: 4.1 The Commissioner (Appeals) failed to appreciate that the Order-in-Original had been passed in gross contempt of the Order-in-Appeal dated 1 st August 2006, passed by the then Commissioner (Appeals) and also in breach of the principles of natural justice. The Commissioner (Appeals) vide the aforesaid order dated 1 st August 2006 had given clear and categorical. directions to the original adjudicating authority to furnish all relevant relied upon documents to the applicants prior to adjudicating the case, which directions were bound to be followed and given effect to. The Commissioner (Appeals) ought to have appreciated that the said Order-in-Appeal dated 1 st August 2006 passed by his predecessor had been accepted by the department and no appeal against the same had been filed. As such, it was incumbent and mandatory on the part of the original adjudicating authority to have followed the directions of the higher authority. The Commissioner (Appeals) failed to appreciate the order of the Hon'ble Tribunal in Voltas Limited Vs. Commissioner of Customs Central Excise, Hyderabad reported at 2006 (202) ELT 355 (Tri.- Bang.) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments amount to violation of principles of natural justice and fair play. a) Commissioner of Central Excise and Customs, Vapi vs. Tuni Textile Mills Ltd.,[2008 (225) ELT 48 (Guj.)] b) Commissioner of Central Excise Vs. S.R.S Plytex, [2008 9226) ELT 511 (Bom.)] c) Steel Fittings Mfg. Co. Ltd. Vs. Commissioner of Central Excise, Kolkata-II. [2008 (227) ELT 544 (Tri.- Kolkata)] d) IPinit Vanaspati Ltd. Vs. Commissioner of Central Excise and Customs, Bhubaneswar-I. [2008 (221) ELT 220 (Tri.- Kolkata)] e) P. Krishna Mohan Vs. Commissioner of Customs, Chennai, [2007 (220) ELT 223 (Tri. Chennai)]. 4.5 Without prejudice to the aforesaid and in any event, the Commissioner (Appeals) failed to appreciate that the demand raised in the show cause notice and subsequently confirmed vide the Order-in-Original dated 12 ' September 2008 is not sustainable inasmuch as the order sanctioning rebate in favour of the applicants, which is a quasi-judicial order, was not challenged by the concerned authorities. The rebate was granted to the applicants after thorough scrutiny of the records. The proper officer granted the rebate in terms of Rule 12 of the said Rules read with Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner (Appeals) failed to appreciate that so also as the demand for rebate under the provisions of section 11A (1) of the said Act is not sustainable, there is no question of imposing penalty under section 11AC on the applicants arise at all. He ought to have appreciated that in any event, the applicants had acted bonafide all along and had not notice of the alleged irregularity of their processor. In terms of settled law, penalty can also be imposed for contumacious conduct of an assessee or where an assessee deliberately defies the law with an intention to illegally gain and defraud the exchequer. 5. Personal hearing was scheduled in this case on 14-02-2012 was attended by Shri Tarun Jain, Advocate on behalf of the applicant who reiterated the grounds of Revision Application. Nobody attended hearing on behalf of department. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. Government observes that the applicants in accordance with Rule 12 of the erstwhile Central Excise Rules, 1944 read with Notification No. 31/98 CE (NT) dt. 16-02-1999 had claimed and received rebate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of impugned Order-in-Appeal dtd. 29-01-2010 - 08-02-2010 b) Date of filing of appeal before Tribunal - 26-04-2010 c) Time taken in filing appeal before Tribunal - 2 months and 19 days d) Date of receipt of Tribunal order dtd.05-09-2011 - 15-09-2011 e) Date of filing of revision application - 10-10-2011 f) Time taken between date of receipt of Tribunal order to date of filing of revision application - 24 days. From the above factual position, it is clear that applicant has filed this revision application after 3 months and 13 days when the time period spent in proceedings before CESTAT is excluded. As per provisions of section 35 EE of Central Excise Act, 1944 the revision application can be filed within 3 months of the communication of Order-in-Appeal and the delay upto another 3 months can be condoned provided there are justified reasons for such delay. 8.1 Government notes that Hon'ble High Court of Gujarat in W.P. No. 9585/11 in the case of M/s Choice Laboratory vide order dated 15.9.11, Hon'ble High Court of Delhi vide order dated 4.8.11 in W.P. No.5529/11 in the case of M/s High Polymers Ltd. and Hon'ble High Court of Bombay in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Erode Rana Textile Processors Ltd who had indulged in clandestine production and removal of processed fabrics and the said documents contain all the details in respect of clandestine transactions made to all the customers There cannot be two opinions that the providing the copies of the documents to one of the merchant exporters involved would not serve any purpose, as M/s Adam Exports Ltd would not be in position to offer any other explanation to form any opinion on this matter It was also stated in the impugned order of the lower authority that the proceedings initiated against the processor M/s Erode Rana Textile Processors Ltd, by the department on the alleged activity of clandestine production and removal of processed fabrics was decided by the Commissioner vide order-in-Original No. 8/2006 (Denovo) dated 28-08-2006 by confirming the demand arising on account of their suppression of production and Me processor had not preferred any appeal against it When the order had remained uncontested by he processor which amounts to acceptance of the suppression of production and clandestine removal of processed fabrics, the quantity of production/clearance ascertained by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the demand of ₹ 4,00,72,500/- on the processor M/s. Erode Rana Textile Processors Ltd. The Lower authority has caused necessary verification and and found that the processor had not preferred any appeal. This has made the lower authority to conclude that when there is no dispute over the actual quantity of processed fabrics produced by the processor and when the whole scheme of evasion through illicit design had been ax4med as uncontested by the processor M/s Erode Rana Textile Processors Ltd, there is no necessity to pr o vide the copies of documents to the applicants. 8. I also find from the order of the lower authority first issued in this case vide order SL No. 05/2006 (ADC) dated 31-03-2006 that he-had given-opportunity to the applicants to peruse the records relied upon in the case and take copies, if required, within 15 days of receipt of the notice by contacting the adjudicating section on any working day. But the applicants wanted the relied upon documents to be sent to Ahmadabad for their perusal. The request was not acceded by the lower authority holding that there was no provision to send the relied upon documents to Ahmadabad. It was also recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng demand of ₹ 4,00,72,500/- by Commissioner of Central Excise, Salem vide Order-in-Original No. 8/06 (Denovo) dt. 28-08-2006. It is noted that the said demand of more than ₹ 4.00 Crores is confirmed for clandestine removal and suppression of production against the processor M/s. Erode Rana Textiles Processor Ltd. from whom the applicant has also got his grey fabrics processed. The processor has not contested the said demand and therefore the said Order-in-Original has attained finality. Since the clandestine removal of processed fabrics is established, the rebate claimed by applicant (Merchant exporter) on the higher rate was incorrect and rebate claim has to be revised and sanctioned at the rate fixed as per formula prescribed in the notification after taking into account the actual production figures of the processor. Applicant has neither availed the opportunity of inspecting the records nor attended personal hearing before adjudicating authority as pointed, out by Commissioner (Appeals). So, there is no force in the contention that principles of natural justice were violated. 10. Applicant has contended that department has not reviewed the, initial Order-in-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been issued until and unless the order under section 47 had been first revised under section 130. 10.2 While referring to the above mentioned case law in the case of Collector of Central Excise, Bhubaneshwar vs. Re-Rolling Mills [1997 (94) ELT 8 (SC)], the Hon'ble Supreme Court has held as under: The learned counsel for the parties do not dispute that this appeal is covered by the decision of this court in Union of India Ors. V. Jain Shudh Vanaspati Ltd. Anr. 1996 (86) ELT 460 (SC)= (1996) 10 SCC 520. In that case the court was dealing with section 28 of the Customs Act which is in pari materia with section 11 A of the Central Excise Act. The said decision is thus applicable to the present case also For the reasons given in the said judgment, the appeal is dismissed with no order as to coasts. 10.3 In I T I Ltd. Vs. Commissioner of Customs, ACC, Mumbai [2008 (228) ELT. 78 (Tri. Mumbai)] it has been held: 11. We hold that the issue of Show Cause Notice under section 28 of the Customs Act, 1962 for recovery of the erroneously granted refund is sufficient to meet the requirement of law. Following the ratio of the Hon ble Supreme Court judgments in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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