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TMI Blog2025 (1) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... Year 2008 and issued a show-cause notice dated 27.03.2010 which was replied by the petitioner and such show-cause notice was adjudicated by the then Commissioner of Central Excise and Customs, Surat-II vide the Order-in-original dated 08.01.2013 holding as under: "(i) Confirmed and ordered recovery of Central Excise duty amounting to Rs. 2,93,95,281/[Rupees Two Crore Ninety Three Lakhs Ninety Five Thousand Two Hundred Eighty One only) short paid by M/s SVM Cera Tea Limited by way of undervaluation under proviso to sub-section (1) of Section 11A. (ii) Confirmed and ordered recovery of Central Excise duty amounting to Rs.7,25,92,302/(Rupees Seven Crores Twenty Five Lakhs Ninety Two Thousand and Three Hundred Two only] not paid by M/s SVM Cera Tea Limited by way of clandestine removal under proviso to sub-Section (1) of said Section 11A of Central Excise Act. (iii) Appropriated the amount of Rs. 25,00,000/[Rupees Twenty Five Lakhs) paid by M/s. SVM during the investigation against the aforesaid demand of duty amounting to Rs. 10,19,87,583/(i.e. 2,93,95,281/- Rs.7,25,92,302/-). (iv) Ordered recovery of Interest as applicable rate on the above duty, mentioned at Sr. No. (i) & ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e witnesses and also provide the documents required by the appellant, if not earlier provided. We find that the adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained as held by the Apex Court in number of judgments. 5. We are therefore of the view that entire matter needs to be reconsidered. Hence, we set aside the impugned order and remand the matter to the Adjudicating authority for passing a fresh de-novo order, Since the matter is very old of the period 2004-05 to 2007-08 it is expected from the Adjudicating Authority to pass the de novo order within a period of three months from date of this order. Needless to say that after making all efforts for providing all documents and allowing the cross examination, the Learned Adjudicating Authority is net precluded from passing a de-novo order on the basis of the records available. The appeals are allowed by way of remand to Adjudicating authority. MA also stands disposed of)" 3.4 Pursuant to the remand, the respondent No. 2 proceeded further with the adjudication process and after hearing the representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has | also been paid within the period of thirty days referred to in that proviso." 4. Learned advocate Mr. Hasit Dave for the petitioner submitted that the order passed by the respondent No. 2 is in flagrant breach of the principle of natural justice as the opportunity to cross-examine the witnesses was not provided though it was directed by the CESTAT that failure to provide the opportunity to cross-examine the witnesses would be in violation of principle of natural justice. 4.1 Learned advocate Mr. Dave invited the attention of the Court that the CESTAT, in order of remand, has directed the respondent No. 2 to make all efforts of providing all documents and allowed the cross-examination and thereafter, passed a de novo order on the basis of the records available. 4.2 It was submitted that the respondent No. 2 granted only one opportunity of cross-examination by issuing the notice to Ten witnesses to be remained present on 21.08.2024 i.e. five witnesses at 11.45 am and another five witnesses at 3.30 p.m. It was submitted that usually three opportunities are given to the witnesses to remain present. However, the respondent No. 2 did not provide any further opportunity for cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph No. 4.1.1 to point out that learned advocates appearing for the petitioner requested to decide the matters on the lines of the judgement of the Tribunal in case of similar 13 parties and as per the additional submission filed by the petitioner as none of the witnesses remained present on 21.08.2024 pursuant to the notice issued by respondent No. 2 for cross-examination and accordingly, respondent No. 2 proceeded for adjudication of the show-cause notice. It was submitted that if the petitioner is aggrieved by the impugned order on merits, the only remedy available to the petitioner is to prefer an appeal before the CESTAT. In support of his submissions, reliance was placed on the decision of this Court in case of Pramodgiri Premgiri Goswami vs. Union of India reported in 2024(0) AIJEL-HC 248470 wherein, in similar facts, this Court relegated the petitioner to file appeal before the CESTAT for raising all the contentions which are raised before this Court. 6. Considering the submissions made by both the learned advocates for the respective parties, it is true that the CESTAT has remanded the matter to the respondent No. 2 to supply the documents sought for by the petitioner as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, none of the witnesses responded to the notices issued to them for appearing on 21.08.2024. In fact, in some of the cases, the notices sent to their address available on records appears to be either closed or shifted. Since, matter is very old pertaining to the period 2004-05 to 2007-08 accordingly, after allowing their request for cross examination, the remand proceeding is proceeded with based on records available as agreed to as well by the noticee detailed in para 4.1.1 above. Therefore, this direction of the Hon'ble Tribunal is waived" in view of the request of the noticee only; who wishes to conclude the matter without further wait on the basis of available records on merit." 8. With regard to issue of following the decision of the CESTAT in similar cases, the respondent No. 2 has observed as under: "11.3 In this regard, I also find that the noticee in their submission placed reliance on the decision of Hon'ble Tribunal in case of Belgium Glass & Ceramics Pvt. Ltd. v. Commissioner reported in 2015 (5} TMI 528-CESTAT for setting aside the demand of central excise duty. The noticee contended that all the cases are based on similar investigation conducted in the anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, such a reliance is not helping their case and is distinguishable on the facts and circumstances discussed above thread barely." 9. From the above observations made by the respondent No. 2 in the impugned Order-in-original, it appears that the respondent No. 2 has taken into consideration all the grievances of the petitioner with regard to the violation of principle of natural justice which are again reiterated in this petition. Be that as it may, we are not inclined to entertain this petition on the ground of breach of principle of natural justice in view of the above observation made by respondent No. 2 which may be considered by the CESTAT in the appeal which may be filed by the petitioner under section 35E of the Central excise Act,1944. 10. This Court, in case of Pramodgiri Premgiri Goswami vs. Union of India (supra), in similar situation, has observed as under: "59. It also appears from the record that after the hearing which took place on 12.10.2021 and submission of reply on behalf of the petitioner, no further hearing was scheduled by the adjudicating authority and the impugned order was issued on 29.11.2021 without deciding the request of the petitioners t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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