TMI Blog2016 (10) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... ort by the appellant. Further, on four occasions this Tribunal gave opportunity to the department to substantiate its case by bringing on record the investigation carried out by DGFT. The lower authority in the impugned order has shown total disrespect to the remand directions. At the same time, when said information was brought on record by the appellant, the lower authority has refused to go by the same, whereas once the DGFT had given clean chit to appellant, the lower authority was bound to drop the demand. Even otherwise the entire case of department is made out on mere surmises and presumptions - it is a settled legal position that the charge of clandestine removal cannot be made without there being corroborative evidences - demand set aside - appeal allowed - decided in favor of appellant. - E/2625/2009-EX[DB] - A/71987/2017-EX[DB] - Dated:- 6-10-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) for Appellant: Shri Rajesh Chhibber (Advocate) for Respondent: Shri Rajeev Ranjan (Joint Commr.) AR Per: Anil Choudhary The present appeal has been filed against Order-in-Original No. 14/Commr./GZB/2009 dated 20/05/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of supplies of tin containers valued at ₹ 2,13,500/- made by M/s Tin Manufacturing Co. of India to M/s Goyal Tin Works Ltd. vide their invoices T-I dated 14.03.1985, T-I dated 17.04.1985 and T-2 dated 27/29.04.1985, the evasion of which has been upheld in earlier paragraph, under Rule 9(2) read with Section 11-A of Central Excises Salt Act, 1944, is confirmed; (vii) I impose a penalty of ₹ 5,00,000/- (Rupees Five Lakhs only) on M/s Tin Manufacturing Co. of India Ltd. under Rule 173-Q of Central Excise Rules, 1944 for the aforesaid contraventions committed by them; B. Lastly, I come to the point as to whether the Central Excise duty of ₹ 5,46,47,223/- alleged by the Department to have been evaded by the party during December, 1983 to March, 1987 is recoverable under Rule 9(2) read with Section 11-A of Central Excises Salt Act, 1944. In support of this allegation the department has relied upon the contents of application filed by the party to the Joint Chief Controller of Imports Exports, New Delhi. The party had declared the consumption of raw material (tin-sheets) and also the value of resultant production. The party has challenged the figures of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 5,46,47,223/- on M/s Tin Manufacturing Co. of India and also imposed the personal penalty of ₹ 1 crore. The contention of the appellant is that before issuing the order the Collector has not granted an opportunity of personal hearing though he in the earlier order dated 24/04/1991 he reserved the order on this aspect till the verification of figures of import by the appellants. The contention of the appellant is that the entire demand was based on the contents of Form-A application filed with Joint Chief Controller of Import and Export for grant of import licence. The contention of the appellant is that they were not put to the notice before issuing the impugned order regarding the verification or investigation conducted by the Collector of Central Excise in this respect. We also took notice of the order dated 28/10/1994 passed by the Additional Director General of Foreign Trade New Delhi where the of Import Export (Control) Act, 1949 read with Section 20(2) of Foreign Trade (development regular) proceedings under Section 4MA for mis-utilization of the Tin Act, 1992 plates imported by the appellant were set aside. The Additional Director General of Foreign Trade in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully complied with the directions of the Honble Tribunal. I also observe that the ends of natural justice have fully been met with. As far as the principles of natural justice are concerned, it would be seen that ample opportunities had already been given to the party and that matter cannot be continuously adjourned to suit their convenience. Anyone taking the plea of natural justice should come with clean hands. Unfortunately, that does not seem to be the case here. Relying on the judgement of the Honble Supreme Court in the case of Natwar Textile Processors (P) Ltd. Vs. Union of India [1995 (57) ECR (10) (Supreme Court) Para-12 thereof] and further the Honble High Court of Madras in D.C.W. Vs. Collector of Central Excise [1990 (46) ELT (233)] quoting favourably the view of the Honble Supreme Court on the principles of natural justice as under: Natural justice is no unruly horse, no lucking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features, and the fundamentals of such essential processual propriety being conditional by the facts and circumstances of Unnatural expansion of natural justice, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to support the case of department which was made out solely on the basis of FORM A, the Commissioner was bound to drop the demand then and there itself and, therefore, also the entire proceedings initiated thereafter were not maintainable. He further submitted that in any case, the facts remained the same as were there at the time of issue of SCN on 22/12/1988 till the passing of impugned order that there was no investigation to support the case of department demanding duty solely based on Form A. Therefore, based on the findings of Commissioner as given in internal Page 29 of OIO dated 24/04/199, no demand could otherwise sustain. 10.3 The counsel further contended that in any case, the department had done miscarriage to the justice as the Commissioner while adjudicating the case in remand proceedings, that too on four occasions, never carried out the directions of Tribunal which remanded the matter for de novo adjudication on more than one occasions, which was sufficient to show that because the department had no material to substantiate its demand, it did not comply with the directions of Tribunal. It is further submitted by the learned counsel that in remand proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas in the present proceedings the Central Excise Department said to have not received any information from DGFT, in spite of there being categorical directions by the CESTAT every time the case was remanded to the Commissioner for re-adjudication. 10.6 It is also contended by the Learned Counsel that in any case if the department did not receive any information from DGFT, investigation could be conducted from the jurisdictional Customs Department (as was ordered by the Tribunal and even requested by the appellant to the lower authority) as to when and how said imports were made, details of which were said to be available in Form A. If according to the department, the appellant had imported some quantity in excess than recorded in statutory records, the information of same must have been with Custom Department as it was not the case of Excise Department that said material was imported in a clandestine manner. 10.7 The Learned Counsel also drew attention towards the findings of Lower Authority in Para-3.8 in which he refused to go by the findings of given by DGFT on the ground that said order did not refer to the quantities mentioned in Form A. It has been contended by the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n carried out by DGFT. The lower authority in the impugned order has shown total disrespect to the remand directions. At the same time, when said information was brought on record by the appellant, the lower authority has refused to go by the same, whereas once the DGFT had given clean chit to appellant, the lower authority was bound to drop the demand. It is observed that it is otherwise also illegal that the appellant imported the material on the basis of information submitted to DGFT whereas said production was cleared in unaccounted manner. There is even no mention as to how the appellant discharged its custom duty liabilities, if the goods in dispute were imported through proper channel. It is also observed that when on the basis of investigation made out by the Central Excise Department, the Income Tax Department dropped the charges on the basis that there was no evidence of improper import by the appellant, the Excise Department was also supposed to drop its case also. It is also further observed that even otherwise the entire case of department is made out on mere surmises and presumptions. It is a settled legal position that for demanding duty on the charge of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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