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2019 (6) TMI 627

..... ginal dated 15th February, 2008 was passed ex-parte without considering the request made by the Appellants by letter dated 5th February, 2008 to await the outcome of Writ Petition No. 974 of 2008? HELD THAT:- If the Appellants were so concerned about the fact that the cross examination was necessary, in the facts of the present case, they ought to have moved the Court and sought urgent interim relief, from the Court before the hearing and disposal of the notice of the Commissioner of Central Excise. The Appellants seek adjournment on the ground that a writ is pending, clearly show that the Appellants seeks to delay the proceeding by not cooperating with the adjudication proceeding. This is apparent from the history of the present proceedings, particularly the earlier exparte order passed on account of non cooperation of the Appellants in disposal of the show cause notice by the Commissioner. This lead to the order of the Tribunal dated 24th September, 2007 setting aside the order dated 11th April, 2007 and restoring the notices to the Commissioner for fresh adjudication. We would have expected the parties to have cooperated with the adjudicating proceeding. It must be borne in mind .....

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..... deration in all the four Appeals. (i) Whether in the facts and circumstances of the case, the Tribunal was justified in not giving any finding on the submission of the Appellants that the Order in Original dated 15th February, 2008 was passed ex-parte without considering the request made by the Appellants by letter dated 5th February, 2008 to await the outcome of Writ Petition No. 974 of 2008 ? 3. Briefly, the facts leading to these Appeals are that these proceeding originated in two show cause notices dated 9th March, 2004 and 11th March, 2004 issued to the Appellants herein seeking to recover Central Excise Duties and to impose penalty for contravention of the Act. On receipt of the two show cause notices, the Appellants herein had approached the Settlement Commission. However, the Settlement Commission rejected the applications of the Appellants. This on the ground that there was no full and true disclosure of duty liability made by the Appellants. Consequent thereto, the proceeding before the adjudicating authority stood revived. The adjudicating authority i.e. Commissioner relating to the above two notices dated 9th March, 2004 and 11th March, 2004 made repeated requests to th .....

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..... icers. Besides, the Appellants also sought copies of the data which was seized during the investigation in the form of floppies. The aforesaid request was rejected by the Commissioner by communication dated 18th December, 2007. In the meantime, the Commissioner had fixed personal hearing on 11th December, 2007, 20th December, 2007, 30th January, 2008 and 7th February, 2008. It is the Appellants' case before us that on 11th December, 2007 the Commissioner was not available for granting the hearing even though the Appellants did appear in the office of the Commissioner of the Central Excise. On 20th December, 2007 the Appellants did not attend the office of the Commissioner. This resulted in the Commissioner giving a fresh date of hearing i.e. 30th January, 2008. However, on 30th January, 2008, the Appellants sought time on the ground of ill health of the counsel resulting in the appeal being adjourned to 7th February, 2008. On 5th February, 2008 the Appellants vide letter informed the Commissioner that the refusal to grant cross examination and denial of the documents and data as sought for, has left to the Petitioners with no option but to file Petition to this Court and reques .....

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..... ces dated 9th March, 2004 and 11th March, 2004 on merits. It is therefore submitted that, the impugned order needs to be set aside and the matter be restored to the Commissioner for fresh consideration after following the principles of natural justice. 8. We have already noticed that by the earlier order dated 24th September, 2007 the Tribunal while setting aside the exparte order dated 11th April, 2007 passed by the Commissioner, had deprecated the conduct of the Appellants in not filing a reply and not attending the personal hearing when granted. Nevertheless, the Tribunal set aside the order dated 11th April, 2007 of the Commissioner and restored it to him for filing adjudication after deposit of ₹ 15 lakhs. Moreover, the Tribunal directed the Appellants not to seek any adjournment, on grant of personal hearing. The Commissioner of Central Excise granted to the Appellants personal hearing, but the Appellants not appear at the hearing on three consecutive dates i.e. 20th December, 2007, 30th January, 2008 and 7th February, 2008. In fact, on 20th December, 2007 the Appellants did not even seek adjournment but just remained absent, yet in fairness the Commissioner granted a f .....

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..... 0. In any case, the orders of the Commissioner dated 15th February, 2008 and 19th February, 2008 record reasons for non giving of cross examination. Moreover, both the above orders dated 15th February, 2008 and 19th February, 2008 also record the fact that the data obtained on the floppies was returned back to the Appellants on 14th September, 2008 during the course of the investigation under proper acknowledgement. These findings of the Commissioner were not a subject matter of specific challenge before the Tribunal as is clear from the impugned order of the Tribunal. The impugned order of the Tribunal finds that the the documents relied upon by the revenue were given to the Appellants along with show cause notices and there was no evidence produced to show that evidence other then that relied upon in the show cause notices were being relied by the revenue. Besides, witnesses whose cross examination were sought were not the witnesses in support of the show cause notices. Thus, the view taken by the Tribunal in dismissing the Appellants' Appeal in the present facts, cannot be said to be perverse in any manner. 11. In the above view, we find no reasons to interfere with the orde .....

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