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2019 (10) TMI 369

..... ty - manufacture taking place or not? - HELD THAT:- There is no dispute to the fact that before passing the impugned order, the show cause notice was issued to the petitioner and that the petitioner has not chosen to file any reply. No doubt, the learned counsel for the petitioner contended that in view of the earlier reply submitted by the petitioner dated 29.05.2014, there is no need for the petitioner to file a reply to the show cause notice - I am unable to agree with the above submissions for the simple reason that the issuance of show cause notice has emerged only after receiving the letter submitted by the petitioner on 29.05.2014. Therefore, if the Adjudicating Authority has chosen to issue the show cause notice even after receipt o .....

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..... 018 dated 31.10.2018. 2. The case of the petitioner is as follows: One M/s. Sri.Jai Ganesh Enterprises, Hosur, is engaged in manufacture of control panels. The petitioner had entered into a contract with the said M/s.Sri Jai Ganesh Enterprises for job work. In this contract, it was agreed that certain materials would be supplied by the petitioner free of cost to M/s. Sri Jai Ganesh Enterprises and they would add some materials and after completion of job work, would send the job worked materials to the petitioner. M/s.Sri Jai Ganesh Enterprises paid Excise Duty upon clearance of the job worked goods to the petitioner. While so, the Department contended that there was under valuation by M/s.Sri Jai Ganesh Enterprises. Accordingly, Show Cause .....

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..... lation of principles of natural justice, the present Writ Petition is filed. 3. The respondent filed a counter affidavit wherein it is stated as follows: The petitioner had given job work to M/s.Sri Jai Ganesh Enterprises and had also supplied certain materials free of cost which ultimately not included in the value of the finished goods cleared by M/s.Sri Jai Ganesh Enterprises which consequently, failed to discharge the Central Excise Duty liability on the same. A show cause notice dated 04.01.2018 was served on M/s.Sri Jai Ganesh Enterprises on 05.01.2018 and the Order in Original was passed on 31.10.2018, after affording an opportunity of personal hearing on four occasions. Therefore, it is incorrect to state that the matter was adjudic .....

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..... onship between the petitioner and M/s.Sri Jai Ganesh Enterprises is of principal to principal basis and therefore, the job worker would be construed as manufacturer under section 2(f) of the Central Excise Act. Accordingly, the job worker is liable to pay the excise duty. Therefore, the above contention raised by the petitioner ought to have been considered by the Adjudicating Authority, even though the petitioner has not filed any reply to the show cause notice. In other words, it is in view of the reply already given by the petitioner dated 29.05.2014, there is no necessity for them to file a reply to the show cause notice. He further contended that the petitioner was not given any personal hearing even though the impugned order referred .....

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..... ms, Central Excise and Service Tax Appellate Tribunal. However, the present Writ Petition is sought to be maintained by the writ petitioner mainly by contending that the principles of natural justice is violated. It is vehemently contended that the Adjudicating Authority has not afforded an opportunity of personal hearing to the petitioner. It is also the contention of the petitioner that, even otherwise, the reply filed by the petitioner dated 29.05.2014, even prior to the issuance of the show cause notice, ought to have been considered in detail. 8. There is no dispute to the fact that before passing the impugned order, the show cause notice was issued to the petitioner and that the petitioner has not chosen to file any reply. No doubt, t .....

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..... proceedings, only if the party so desires. Therefore, such request for personal hearing must emerge from the reply filed against the show cause notice. In this case, no such reply was filed. Therefore, there is no meaning in contending that no personal hearing was given to the petitioner. 10. While coming to the next submission on the reply dated 29.05.2014 submitted by the petitioner, I am of the view that when admittedly, the said reply was filed much before the show cause notice and if the show cause notice is issued later containing some allegations, unless and until such allegations are met out by way of filing a reply, the petitioner is not justified in stating that the said reply filed earlier ought to have been considered as the rep .....

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