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2015 (8) TMI 1258 - GUJARAT HIGH COURT

2015 (8) TMI 1258 - GUJARAT HIGH COURT - 2016 (331) E.L.T. 433 (Guj.) - Direction to make pre-deposits - Held that:- In the facts of the present case, the Tribunal after erroneously recording that the petitioners had indulged in delaying the adjudication proceedings, has directed to deposit a sum of ₹ 20,00,000/- which is clearly discriminatory.

In the aforesaid premises, the impugned order passed by the Tribunal being based upon an erroneous finding of fact as well as being dis .....

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,000/- within a period of eight weeks and report compliance to the adjudicating authority and further observes that upon verification of payment of such deposit, the adjudicating authority will decide the case afresh in de novo adjudication. Accordingly, the adjudicating authority shall decide the case afresh, de novo, after providing all relied upon documents to the petitioners and after extending them an opportunity of personal hearing. - SPECIAL CIVIL APPLICATION NO. 15279 of 2014 - Dated:- 2 .....

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aken up for final hearing. 3. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 5th February, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as the Tribunal ), whereby the Tribunal while remanding the matter to the adjudicating authority, has directed the petitioners herein to deposit an amount of ₹ 20,00,000/- within a period of eight weeks and to report com .....

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ed by the Directorate General of Central Excise Intelligence (DGCEI), Ahmedabad Zonal Unit to the petitioner firm and its partner Shri Firozahmed Gulam Mohammed Waghbakriwala and Shri Mobin Bilal Memon, Director of M/s Hz. Khidhr Exports Pvt. Ltd., alleging that the petitioners indulged in bogus export of goods to Malaysia through third party exporter, etc. It is the case of the petitioners that the show cause notice was served upon them on 09.03.2006 with incomplete relied upon documents by DGC .....

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l, and that no notices were sent to the respondent partner. The proceedings pursuant to the show cause notice culminated into an ex parte order-in-original dated 18.03.2013 which order was sent to the residence of the partner (second petitioner herein) through the officers on 23.04.2013. By the order-in-original, the adjudicating authority confirmed the demand of central excise duty of ₹ 1,28,25,933/- leviable on 308436 linear metres of dyed/printed polyester fabrics valued at ₹ 1,48 .....

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novo adjudication. However, the Tribunal ordered that the main appellant shall deposit an amount of ₹ 20,00,000/- within a period of eight weeks and report compliance to the adjudicating authority and upon verification of payment of such deposit, the adjudicating authority will decide the case afresh in de novo adjudication after giving all relied upon documents to the petitioners and after affording them an opportunity of personal hearing. Being aggrieved by the direction issued by the T .....

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eedings. The attention of the court was drawn to certain documents obtained by the petitioners under the Right to Information Act, to point out that the show cause notice came to be issued on 31st January, 2006 and by an application dated 19.04.2006 addressed to the Joint Director, DGCEI, the petitioners had made an application seeking copies of the documents mentioned in Serial No.5 to 12 of Annexure C to the show cause notice. It was pointed out that on 31.07.2006, since the decision on demand .....

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book for furtherance of the adjudicating proceeding. It was submitted that thus, the matter had been kept in the call book for a period from 31.07.2006 to 12.01.2012. Subsequently, the notices for personal hearing came to be issued; however, the same were never served upon any of the petitioners and the adjudicating authority passed the order-in-original ex parte, confirming the duty demand as well as interest and penalty. It was submitted that therefore, the Tribunal was not justified in holdin .....

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der directing payment of pre-deposit had been made. It was contended that therefore, the impugned order passed by the Tribunal being based upon incorrect findings of fact as well as being discriminatory inasmuch as in the case of similarly situated appellant, no order for depositing any amount has been made, the impugned order to the extent the same directs deposit of ₹ 20,00,000/-, deserves to be quashed and set aside and the adjudicating authority is required to be directed to decide the .....

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that the petitioners after making the application, had not followed the same any further, nor had they made any efforts to obtain copies of such documents. It was submitted that it was having regard to the conduct of the petitioners that the Tribunal had thought it fit to remand the matter with a condition to deposit ₹ 20,00,000/- to ensure that the petitioners cooperate in the hearing of the case. Referring to the impugned order, it was submitted that in another similar case of the petiti .....

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remanding the case to the adjudicating authority and that the Tribunal having done so, it cannot be said that the impugned order suffers from any legal infirmity warranting interference by this court. In support of such contention the learned counsel placed reliance upon a decision of this court in the case of Avaya Global Connect Ltd. v. Union of India, 2015 (37) STR 193 (Guj.) for the proposition that there is no bar under section 35C of the Central Excise Act, 1944 that while referring the c .....

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nt thereto, the petitioners by a letter dated 19.04.2006, sought for copies of relied upon documents from the DGCEI. On 31.07.2006, since the decision on duty involved in raw material used in manufacture of finished goods cleared was still pending before the Tribunal, the cases, including the present one, came to be transferred to the call book. Subsequently, on 12.01.2012, it was decided that all pending cases be taken out from the call book and adjudicated. Thereafter, intimation for hearing c .....

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ontrary to the record of the case. As can be seen from the impugned order, the direction to deposit ₹ 20,00,000/- within a period of eight weeks appears to have been given on account of the above finding recorded by the Tribunal that the petitioners have delayed the adjudication proceedings and therefore, are required to be put to certain conditions to ensure that they cooperate in the adjudication proceedings. Under the circumstances, the very basis for imposing such condition is erroneou .....

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ies, interest and penalty confirmed in the impugned order; (ii) That unconditional stay be granted against recovery of duty, interest and penalty imposed; (iii) That an early personal hearing may be granted; (iv) For such other order/orders as may be deemed fit and proper in the facts and circumstances of the case. 11. As can be seen from the impugned order, the Tribunal has firstly allowed the stay application and thereby, waived pre-deposit of the duties, interest and penalty and has also affo .....

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ances, entertaining the appeal without insisting on any pre-deposit and then directing payment of ₹ 20,00,000/- while remanding the matter to the adjudicating authority, is a contradiction in itself. Once the Tribunal found it fit to waive pre-deposit under section 35F of the Central Excise Act, one fails to comprehend as to why a direction for pre-deposit was required to be issued while remanding the matter for fresh adjudication. 12. Besides, as pointed out by the learned advocate for th .....

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