TMI Blog2017 (10) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN, the said telex message had not been supplied. It is further seen that even after the appellant's request for copy of this purported telex message, the department could not provide the same - it transpired that the authorities concerned refused to take cognizance or rely upon the said letter of Dunlop. Even the request to allow cross examination of representative of M/s. Dunlop India Ltd. with reference to aforesaid telex message was turned down. The duty liability upheld in the impugned order, based on a purported telex message which was never provided to the appellant, will therefore not sustain and will have to be set aside - appeal allowed - decided in favor of appellant. - E/141/2009 - Final Order No.42230/2017 - Dated:- 23-8-2017 - Ms. Sulekha Beevi, Member ( Judicial ) And Shri Madhu Mohan Damodhar, Member ( Technical ) Shri J. Shankarraman, Advocate for the appellant Shri A. Cletus, ADC ( AR ) for the respondent ORDER Per: Bench The above case has a chequered history. 2. The brief facts are that the appellants are engaged in the manufacture of Dipped Man-made fabrics (DMMF in short) on their own account as well as on job work basis. For m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of natural justice. The adjudicating authority in the second round of denovo adjudication then passed OIO No. 22/2004 upholding the alleged under valuation and confirming the duty demand in the five SCNs. The appellants again filed appeal before the Commissioner (Appeals) and vide OIA dated 16.02.2005 the Commissioner (Appeals) remanded the matter for fresh adjudication on the ground of violation of principles of natural justice. 3. Meanwhile, the appellants filed W.P.No. 8439 8440/2005 before the Madurai Bench of the Hon'ble High Court of Madras seeking a direction to the adjudicating authority to provide the details as ordered by the Commissioner (Appeals), for refund of the amount deposited by the appellants. The said writ petitions were dismissed as infructuous vide order dated 20.08.2007, for the reason that the Revenue has commenced denovo adjudication pursuant to the order of remand. 4. Adjudicating authority following the direction of remand by the Commissioner (Appeals) in denovo adjudication passed OIO dated 31.05.2006, upholding the alleged under valuation and confirmed the duty demand in the five SCNs. The appellant filed appeal before the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the basis for arriving the duty demand. Till this date the department has not complied with the Cestat order by furnishing these details/documents to the appellant. That the appellant is again before this forum contending that the duty has been confirmed without furnishing the relevant documents and details to the appellant. The Ld. Counsel submitted that the department proposes to include the following cost elements for arriving at the assessable value of the product DMMF. They are as under:- Sl. No Cost elements proposed by Revenue for inclusion 1 Warehouse Rent @ 23 paise/Kg. 2 Transit Insurance @ 0.37% of filament cost 3 Clearing and Forwarding charges @ ₹ 1.63/ Kg. 4 Bank charges (LC opening charges) @ 0.5.% of CIF cost of filament 5 4.5% on money locked up on the cost of filament yarn 6 Handling charges at appellant's factory @ 10 paise/kg 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and the details of the cost for which the dispute pertains is a decade earlier and therefore cannot be considered. That even in the letter issued by M/s. Dunlop there is nothing against the appellant or any evidence suggesting that these costs has to be included in the assessable value. With regard to the cost elements 6, 7 8 in the table above, the Ld. Counsel submitted that these are job charges and has been already included in the cost of raw materials. For this he drew support from the statement given by Shri S. Dalvi (Finance Manager) dated 20.08.1998. With regard to appropriation of sale proceeds and waste, he submitted that there is no evidence to prove that conversion charges collected or appellant's profit are suppressed to the extent of sale proceeds of wastes retained by the appellants. He drew support from the judgment of the Hon'ble Supreme Court in the case of Ujjagar Prints Ltd. It was also added by the Ld. Counsel for the appellant that the notice clearly says that the provisional assessment was made on the behest of the department and it was not an option exercised by the appellant. The department made enquires as to why the product namely DMMF manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish details of the costs/charges to be included. It is for the appellants to obtain the finalization of assessment. The department noticed variation in the price of DMMF manufactured by the appellant on their own and on job work basis. The adjudicating authority having confirmed the demand without referring to the telex message, the appellants cannot contend that there is violation of natural justice. 10. Heard both sides and have gone through the facts. 11.1 It is cardinal principal of law and jurisprudence that a defendant who is charged with infraction of law should not only be put to notice but also the documents relied upon for such charges should made be available to him. 11.2 We find that the edifice of the allegations made in the SCN dated 17.05.1991, in paras 19-20 thereof is based upon purported telex message of M/s. Dunlop that they have incurred all the said charges listed in para-7 of the notice. While some of other documents have been enclosed and provided to appellant, however, the purported telex message has not been enclosed or made available. Interestingly, even the SCN does not appear to be categorical and confident with regard to any such message ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 of the impugned order that appellant had sought for the following: (i) supplying the copy of telex message of Dunlop discussed in the show cause notice dated 17.05.91 (ii) producing the officials from Dunlop for cross examination, (iii) providing the work sheet furnishing the break-up details of demand raised in five show cause notices. However, the lower authority has brushed aside direction of the Tribunal for supply of the telex message observing that the same will hold good only when the said documents are relied upon for pricing. 11.4 This, in our view, is contrary to the facts since para-20 of the SCN dated 17.05.91 clearly acknowledges price list, only from the message of Dunlop that appellant have incurred all the said charges stated in para-7 of the notice and accordingly para-22 of the notice proposes that in view of foregoing the assessable values declared have to be revised adding the eight elements. 11.5 Viewed in this light, we cannot but conclude that dismissal of the direction to provide a copy of the telex message to the appellant and peremptorily upholding of the order of original authority is nothing but attempt to confirm duty liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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