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M/s. The Empire Safe Co. Versus Commissioner of Central Excise, Delhi

2016 (2) TMI 325 - CESTAT NEW DELHI

Demanding duty along with interest and imposing penalty thereon - Held that:- We have perused the impugned order in detail and in the impugned order, the adjudicating authority has not given any independent finding to arrive at the conclusion but merely copied the finding of the earlier adjudication order and hold that clearance of both units can be clubbed and duty can be demanded accordingly, which is not permissible in law as the adjudicating authority was not having any documents to rely or .....

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ection of this Tribunal dated 23.6.92, the impugned order is not sustainable in the eyes of law, therefore, same is set aside and appeal is allowed with consequential relief - Decided in favour of assessee - Excise Appeal No. 1318 of 2009 - FINAL ORDER NO. 53475 /2015-EX(DB) - Dated:- 16-10-2015 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. B RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri K K Anand, Advocate For the Respondent : Shri Govind Dixit, DR ORDER Per Ashok Jindal: The appe .....

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e appellants have made out a serious grievance of the gross violation of principles of natural justice in as much as the statement of Smt. Jagbinder Kaur Bhatia having been fully relied by the learned Principal Collector, had not been furnished to them to make their effective reply. They have also complained that the Investigating officer having been produced for cross examination on the first day, was not again produced for cross examination on the first day, was not again produced and it had b .....

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it owned by Smt. Jagbinder Kaur Bhatia, and that of appellants unit being one and the same and there is commonality of interest. In a circumstances like this the learned Collector proceeding to adjudicate on this issue and deciding that they are one and the same is not sustainable. The main reliance in the impugned order is on the statement of Smt Jagbinder Kaur Bhatia and the same having not been furnished to the appellant, the impugned order would suffer from infirmity. The second difficulty i .....

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upon the nature of the enquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision partem requires that a particular specified procedure to be followed. It may be that in a given case the rule of audi alterm partem may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be perm .....

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and, therefore, there is no need to permit cross-examination, is an assertion not supported by any legal authority. The adjudicating authority would have to consider the question of cross-examination in the light of the law laid down in Shadulis case (supra), If the adjudicating authority considers that it is not necessary to permit cross-examination, he is required to record reasons for not permitting cross-examination. In this particular case, the statement of Shri Dayachand recorded under S .....

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of principles of natural justice has to be upheld. In these circumstances, we set aside the impugned order and refer the matter back to the adjudicating authority for fresh adjudication. The authorities shall furnish a copy of the statement of Smt. Jagbinder Kaur Bhatia and shall consider the request for cross examination of the others in the light of our observations above. The authorities will be at liberty also to issue such clarification to the show cause notice on the basis of the available .....

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, appeals by them have been disposed of by the Tribunal vide orders dated 23.6.92 and 23.11.94 remanding the matter to the adjudicating authority for fresh decision with specific direction that cross examination of one Shri Dayachand, employee of The Empire Safe Co. should be allowed and that a copy of the statement of Smt. Jagbinder Kaur Bhatia should be made available. Both these directions could not be met by the Commissioner who has passed by the impugned order dated 29.12.2008, nearly after .....

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he adjudicating authority or as human beings as such . When exactly the documents were lost by the Department is not forthcoming from the records. The relied upon documents which were handed over to the appellant at the time of issue of show cause notice were also reportedly lost due to change of the Advocate. Commissioner specifically records that no original relied upon documents were available while he was deciding the case. 4. Learned advocate appeared on behalf of the appellant and submits .....

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me is not sustainable in the eyes of law. Therefore, impugned order is to be set aside. 5. On the other hand, learned AR strongly opposed the contention of the learned Counsel and submits that learned Counsel Shri K K Anand, advocate for the appellant in various communication indicated particularly in his letter dated 28.09.2005 intimated that all the papers of the case were lying with the earlier counsel Shri Harbans Singh and his client did not succeed to get the same. Therefore, direction of .....

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hich is already with the earlier counsel of the appellant Shri Harbans Singh, advocate. 6. On 16.10.2015, when the arguments were concluded, the learned AR sought time to file written submissions. The request of the learned Counsel was considered and a time of 7 days was granted to the learned AR to file his written submissions apart from oral submissions. During the course of arguments it is made clear that submissions be made within seven days otherwise the same shall not be taken up on record .....

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and I have examined the case records. From the allegations contained in the show cause notice vis-vis reply submitted by the party, the following points need to be considered: (i) Whether the case can be decided at this stage, when no relied upon documents are available and all the original documents are lost due to natural fury and circumstances beyond the control of adjudicating authority or human beings as such. (ii) Whether M/s. Empire Safe Co. and M/s. The Empire Safe Co. are two legal and .....

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icating authority has passed the impugned order. We further observe that the learned AR strongly contended during the course of argument that as per letter dated 28.9.05, a communication by the present counsel of the appellant with the department intimating that all the papers of case were lying with earlier counsel late Shri Harbans Singh and his client did not succeed to get the same. From this, the learned AR drew the conclusion from the said letter that statement of Smt. Jagbinder Kaur Bhati .....

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complied with and consequently de-novo proceedings also can not be completed. The said application was disposed of by this Tribunal vide order No. 757/2007 Ex dated 14.8.2007 wherein this Tribunal has passed the following order:- Revenue filed this Misc. application with the request to waive the condition of supply of documents and permitted de novo proceedings without said documents. We find that the matter was remanded to the adjudicating authority to decide afresh in view of the observations .....

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