TMI Blog2015 (11) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... panies. The Appellants requested the Adjudicating authority to supply the copy of documents recovered from the premises of transporters as referred in the annexures to the Show Cause Notice and the cross examination of the employees of transporters, which was rejected. The Commissioner (Appeals), by earlier order dt.14.12.2005, remanded the matter to the Adjudicating authority for denovo Adjudication order. Despite the order of the Commissioner (Appeals) in 2005, the Adjudicating authority had not supplied the relied upon document as recovered from the premises of the third party and also denied the opportunity of cross examination. By the impugned order, Commissioner (Appeals) proceeded on the basis of the statements of the employees of the Appellant, who was maintaining Note Book. But, the said Note Book is not the basis of demand of duty. So, there is no material on record, on the basis of which, it could justify the clandestine removal of goods. So, the demand of duty alongwith interest and imposition of penalty cannot be sustained. - impugned order is set aside - Decided in favour of assessee. - Appeal No. E/730,731/2008-SM - Order No. A/11684-11685/2015 - Dated:- 18-11-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant Company, amongst others. By the impugned order, the Commissioner (Appeals) upheld the Adjudication order and rejected the appeals filed by Appellants. 3. The learned Advocate on behalf of the Appellant submits that the entire demand was raised on the basis of the documents recovered from the premises of the transporter and the statements of the employees of transporter. In this context, the learned Advocate drew the attention of the Bench to the Annexure B to I of the Show Cause Notice. He submits that the Appellant requested to provide a copy of relied upon documents and cross examination of the employees of transporters. It is submitted that the notebooks were seized from the premises of the Appellant and no demand was raised on the basis of the said notebooks. It is further submitted that despite of the Order (Appeal) dt.14.12.2005 of the Commissioner (Appeals), the Adjudicating authority in denovo Adjudication, had not supplied the relied upon documents and also not given the opportunity of cross examination. By the impugned order, the Commissioner (Appeals) had also not considered their submissions. He submits that during summon proceeding, the Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 on the above cited subject. In this connection, it is to inform you that the matter is between you and HPIU-IV, Surat-II, therefore, it is requested to do contact with the Office of the Deputy Commissioner (Prev.), Central Excise Customs, Surat-II and obtaining clarification that the matter relating to the said case has been cleared and they have no objection if the deposit of ₹ 75,000.00 refunded. No Objection Certificate may be obtained from Dy.Commissioner (Prev.), and furnish alongwith the Refund claim, so that further action can be initiated. Therefore, the application dt.13.09.2001 alongwith its enclosures are returned herewith for doing needful at your end. 6. Thereafter, a show cause notice dt.09.11.2001 was issued. It is revealed from the Annexure B to I of the Show Cause Notice, that the demand was raised on the basis of the L.Rs. recovered from the premises of the various transport companies. The Central Excise officers recorded the statements of the employees of the transport companies. The statements are mostly similarly worded. By the statement dt.12.09.2000, Shri Shabbir S. Shaikh, Manager of M/s Surat Ahmedabad Transport Pvt. Ltd, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2005 is reproduced below:- It is seen from the impugned Order-in-Original that the clandestine removal of excisable goods and evasion of duty has been established on the basis of transporters depositions and their records recovered by the investigating officers. On perusal of the appellants defence reply dt.11.02.2002 filed to the show cause notice, it reveals that a demand for supply of relied upon documents and cross-examination of transporters whose statements have been recorded was asked for. However, these requests have not been considered by the Adjudicating authority before adjudicating the case. Further, it is also noticed that the Adjudicating authority, viz. Joint Commissioner, has not heard the appellants in person before deciding the case. The change in Adjudicating authority has also not been intimated to them in writing. Therefore, there is a denial of natural justice to the appellants to properly represent their case. 2. In view of the above facts, I hereby set aside the impugned Order-in-Original and remand back the case for fresh adjudication to the original Adjudicating authority with directions to provide all relied upon documents to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments which was not complied with. On the other hand, by the impugned order, the Commissioner (Appeals) proceeded on the basis of the statements of the employees of the Appellant Company in respect of seizure of notebooks, which is not the basis of the demand. It is clearly evident from the annexures to the Show Cause Notice that the demand was raised on the basis of the documents recovered from the various transport companies, copies were not provided to the Appellant Company. In my considered view, denying the opportunity of cross examination of the witnesses whose statements were relied upon by the Adjudicating authority, and without supplying the copy of the documents recovered from the premises of the third party, the basis of the impugned order is a serious lapse, which makes the order nullity, inasmuch as it amounted to violation of principles of natural justice. It is noted that the Appellants are adversely affected by the statements of the employees of the Transport Companies and the documents recovered from the transport companies and they are not allowed to cross examination of the witnesses and to examine the documents on the basis which the demand was raised. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder as passed by the Tribunal and allow the appeal. 12. Another aspect of the case is that the learned Authorised Representative submitted that the Director of the Appellant Company was shown and accepted the statements of the employees of the transport companies. The learned Advocate countered the submission of learned Authorised Representative and drew the attention of the Bench to the correspondences to substantiate that the Appellant had not accepted the clandestine removal of the goods and filed refund claim of deposit made at the instance of the officers. This is supported by the letter dt.25.09.2001 of the Assistant Commissioner of Central Excise, as referred above. It is seen that the Central Excise officers visited the Appellant s factory on 22.08.2000, no storage/excess quantity of finished goods was found. They have also seized several records, no evidence to indicate clandestine removal of goods. The Hon'ble Gujarat High Court in the case of Commissioner of Central Excise, Vs Saakeen Alloys Pvt.Ltd 2014 (308) ELT 655 (Guj.) observed that confessional statement solely in the absence of any cogent evidences cannot make the foundation for levying the Excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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