TMI Blog2023 (2) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... he noticee who can avail the opportunity of being heard. It also insist on the separate communications to be made to the noticee for each opportunity of personal hearing. In fact, the separate communication for each hearing extension would be issued at sufficient interval - Maintaining of record of personal hearing and written submissions made during the personal hearing is also insisted upon by this very circular. It also follows that the adjudication order should be a speaking order which should stand the test of legality, fairness and reason of the appellate forum. It would be pertinent to note that the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The order impugned passed by the authority concerned deserves to be quashed and set aside remitting the matter to the stage where it was left for the authority concerned to avail an opportunity within two weeks of the date of receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en place. However, on the basis of the statements recorded under Section 14 of the Central Excise Act and the ledger maintained by the Suraj Limited, the department issued the show cause notice on 17.12.2018 proposing to recover Cenvat Credit amounting to Rs.3.97 crores (rounded off) from Suraj Limited on the allegation that they availed cenvat of excise duty without receipt of quantity of inputs and proposing penalty under Rule 26(2) of the Central Excise Rules on the petitioner for abetment. 2.4 It is further averred that on 19.7.2019, the respondent no.2 issued a letter to the petitioner directing to file reply to the show cause notice to which the petitioner, on 25.7.2019, replied that they had not received any show cause notice and thereby requested to provide a copy of the same along with the relied upon documents. 2.5 A copy of show cause notice of 17.2.2018 had been provided by the respondent no.2 on 2.8.2019. 2.6 On 23.3.2020, the Government of India announced the nationwide lockdown on account of spread of Covid-19 pandemic and which mandated the citizens to stay at home and resulted into complete lockdown. 2.7 The department had fixed the personal hearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Annexure- A ), and be further pleased to direct Respondent No.2, to allow the petitioner to cross examine the persons whose statements are relied upon in the show cause notice; (C) That Your Lordships may be pleased to stay the operation of impugned order dated 12.10.2020 till the hearing and disposal of this Special Civil Application; (D) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted. 4. This Court, on issuance of notice on 3.2.2022 (Coram: J.B.Pardiwala,J (as His Lordship then was) and Nisha M Thakore,J) passed the following order, while granting interim protection to the petitioner: 1. We have heard Mr. Dharmadhikari, the learned Senior Counsel assisted by Mr. Dhaval Shah, the learned counsel appearing for the writ applicant. 2. The subject matter of challenge in the present writ application is the legality, validity and properitory of the order passed by the Commissioner dated 12.10.2020 raising a demand of Rs.3,97,36,988/- towards CENVAT credit under the provisions of Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11(A)(4) of the Central Excise Act, 1944. The impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an e-mail to the department that they have not received a copy of SCN. According to the respondent, show cause notice has already been served on the petitioner through R.P.A.D. which has been dispatched on 19.12.2018. It was only on account of his request that a second time, the SCN had been served upon him where they were asked to furnish the reply. 5.1. The personal hearing was fixed on 13.4.2022 which he failed to respond to and the petitioner asked to submit the final reply on 23.9.2020. Without naming the persons, without providing any justification for cross-examination of witnesses, a request is made for cross-examination of witnesses and since adjudication process was unduly being delayed, virtual hearing of the matter was fixed on 19.10.2020 which was communicated to the petitioner but no one appeared nor the petitioner sent any timely request seeking adjournment. The petitioner since failed to appear for the personal hearing, earlier it was fixed on 13.4.2020 and again on 9.10.2020. 5.2. On merit and on the aspect of rescheduling of personal hearing of the date of 9.10.2020, it is contended that no request for adjournment has been sought. Much has been contended on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to be reproduced. 14.3 Personal hearing : After hearing given a fair opportunity to the noticee for replying to the show cause notice, the adjudicating authority may proceed to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing / extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee. 14.4 Record of personal hearing: The adjudicating authority must maintain a record of personal hearing and written submission made during the personal hearing. Evidence of personal hearing and written submission on record is very important while adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present, this aspect remains uncleared. We are in receipt of this communication of 5.10.2020 was on the very day. For present, it appears to have been received on 9.10.2020 as per the version of the petitioner. Be that as it may. Without entering into that aspect, in wake of the breach as noted at the initial stage while issuing the notice and as is also apparent from the circular 1053/3/2017 dated 10.3.2017 where the board itself expects the officer concerned to avail opportunity of personal hearing with sufficient interval of time so that the noticee can avail the opportunity of being heard and the insistence on the part of the board for separate communications to be made to the noticee for each opportunity, there appears to be a clear breach. 13. We also notice that the request on the part of the petitioner tendered at the time of final reply on 23.9.2020 in its letter dated 22.9.2020, the petitioner had made a request for cross-examination of the witnesses on two counts- one that they did not name the persons and two there was no justification for cross-examination of the witnesses, on the ground that the process of adjudication was unduly delayed and therefore the virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. The Apex Court further held in paragraph 7 as under: 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers / witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No.2216 of 2000, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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