9. Shri A.K. Mittal vs Commissioner Of Central Excise

[Arising out of order-in-original no. 18/2009 dated 30-03-2009 passed by Commissioner of Central Excise- Delhi-II, New Delhi]

For Approval and Signature

1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

1. My Lady Cosmetics (I) Pvt. Ltd.,

2. My Fair Lady Ltd.,

3. M/s. Fouxclue Enterprises Pvt.

4. M/s. MFL Pharma

5. M/s. Celebrity Cosmetics

6. M/s. Celebrity Cosmetics

7. M/s. Synthetics World (India)

8. Shri S.N. Chopra,

9. Shri A.K. Mittal Appellants

Vs.

Commissioner of Central Excise Respondent

Appearance: Shri S.N. Chopra (Co. Director)

Shri Pramod Kumar, JCDR

Coram: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B.Ravichandran, Member (Technical)

Final Order NO. 52468-52476/2015

Per: Ashok Jindal

The appellants are in appeals against the impugned order in third round of litigation. The facts of the case, in brief, are as under:

The case made out is of clandestine manufacture and clearance without payment of excise duty of different cosmetic items during the period 1993-94 to 1997-98 (upto 18.07.2009). This is the third round of litigation. In the first two rounds, at the stage of hearing stay petition, the matter was remitted back to the adjudicating authority by the Tribunal, directing that the basic work sheets used for demanding the duty proposed in the SCN should be supplied to the appellants. This direction has not been complied before issuing the third adjudication order, which is the impugned order. It appears that the adjudicating authority has not understood what were the worksheets required to be supplied. Adjudicating authority was of the view that the thirteen annexures A1, B1 to F1, B2 to F2, G and H read with paragraphs 80 to 83 of the show cause notice clearly explain how the demand is worked out.

The defence of the appellants hinges on non-supply of basic worksheets rather than the merits of the case.

Now let us examine the brief facts of the case. The parties before us and their interrelationship as made out by Revenue are indicated in the following table:

S.NO. Party Constitution Role

1.

My Lady Cosmetics (India) Pvt. Ltd (MLCIPL for short) Pvt. Ltd. Company having S.N. Chopra as director The only entity actually doing manufacturing activity

2. Bajaj Sales International Ltd.

Ltd. Company, Shri S.N. Chopra is a Director A marketing concern for products manufactured by MLCIPL

3. My Fair Lady Ltd.

Ltd. Company, Shri S.N. Chopra is a director A marketing concern for products manufactured by MLCIPL

4. Beauty Counsellors Proprietorship of Mrs. Santhosh Chopra wife of S.N. Chopra Supposed to be a manufacturer but not having any manufacturing facility. Just issuing invoice for goods mfrd by MLCIPL

5. Celebrity Fashions Proprietorship of Ms. Bindu Bhalla, daughter of S.N. Chopra Supposed to be a manufacturer but not having any manufacturing facility. Just issuing invoice for goods mfrd by MLCIPL

6. MFL Pharma Ltd.

Ltd. Company, Shri S.N. Chopra is a director A marketing concern for products manufactured by MLCIPL

7. Synthetic World India Ltd.

Proprietorship concern of S.N. Chopra Supposed to be a manufacturer but not having any manufacturing facility. Just issuing invoice for goods mfrd by MLCIPL

7. S.N. Chopra Individual The man controlling all the above companies

8. A.K. Mittal Individual Manager Accounts of M/s. Bajaj Sales Int. Pvt. Ltd.

Excise duty is demanded on four counts as below:

(i) Duty worked out considering that the entire sales of Bajaj Sales International and My Fair Lady Ltd. were sales of goods manufactured by MLCIPL and the assessable value of the goods were the value at which goods were sold by these firms to the dealers;

(ii) Duty on goods shown to be removed under sales promotion document without payment of duty;

(iii) Duty on goods cleared to dealers for replacement of damaged goods without payment of duty on fresh supplies;

(iv) Duty on room fresheners on the ground that these were actually dutiable cosmetics and not non-dutiable room fresheners.

2. Shri S.N. Chopra, Director of main appellant appeared before us and submits that the appellant since issuance of the show cause notice are demanding basic work sheets which have not been supplied to them and only for that reason, in earlier round of litigation, this Tribunal has remanded the matter back to the Adjudicating Authority. In these proceedings also, no document has been supplied to the appellants. Therefore, impugned order is not sustainable and hence, may set aside.

3. On the other hand, ld. AR supported the impugned order and supported that there is no basic worksheets with the department to supply to the appellant, in fact, calculations have been made on the basis of annexures to the show cause notice and same are the recourse supplied to the appellants at the time of issuance of the show cause notice. Therefore, no other document is required to be supplied to the appellant.

4. Heard the parties and perused the earlier orders of this Tribunal while remanding the matter back to the Adjudicating Authority for re-consideration.

5. In the order no. 1167-1175/1999/A dated 13/08/1999 this Tribunal has observed as under :

On the issue whether the duty directed to be paid by the appellant company, is legally due from them we had to search in vain the document relied on by the Commissioner. No document gives any light on this issue. No worksheet giving the detail has been relied on by the Commissioner. No such detail was given to the party and their explanation called for. So if this appeal is admitted and taken up for final hearing in the usual course after one or two years the Tribunal, at that stage also be constrained to remit the matter to the Commissioner for de-novo decision on account of lack of relevant materials and evidence. The delay in that may be caused by admitting the appeal will certainly go to the prejudice Revenue as also the appellant.

We are not at all satisfied with the following observations made by the Commissioner in the impugned order  as regards the work sheets there is no such document on record and there is no legal requirement to prepare and provide the worksheet in the notice sheet. Without such an evidence or acceptable materials Commissioner cannot arrive at a correct decision.

The Commissioner detailed above clearly shows that the Commissioner, Central Excise while passing the impugned order did not apply his mind to the correct legal position and even to all factual aspects.

In view of what has been stated above we set aside the impugned order in its entity and remit the entire matter to the Commissioner for de-novo disposal. We make it clear that Commissioner should give reasonable opportunity to the appellants to submit their case. Commissioner should pass final order taking note of the decision of this Tribunal, after affording the parties reasonable opportunity being heard in the matter. Appeals are disposed of in the above terms.

6. In the remand proceedings, again no compliance was made of the order dated 13/8/1999 and another order was passed which was again remanded by this Tribunal vide order dated 13/7/2007 where again matter was remanded to comply with the directions of order 13/8/1999 in second remand proceedings impugned order has been passed without supplied any worksheet to the appellant. He further observed while considering the stay applications of appellant this Tribunal vide order dated 21/9/2012 again directed to the department that they may confirm whether documents necessary for quantify the demand are readily available if documents are not available they may prepare worksheet which lead to the original figures as indicated in the show cause notice or any new figure and submit such worksheet to the appellant. Thereafter, matter has come up for hearing several occasions till date no such worksheet has been supplied to the appellant. In these circumstances, we fail to appreciate the action of the Adjudicating Authority or the department not to following the directions of this Tribunal to adjudicate the matter. In these circumstances, we are giving last chance to the Revenue to comply with the directions of this Tribunals order dated 13/8/1999 and the stay order dated 21/9/2012, thereafter to decide the matter on its merits after affording the reasonable opportunity to the appellant to present their case. In these set of observations we set aside the impugned order and remand the matter back to the Adjudicating Authority first to comply with the order of this Tribunal in earlier remand proceedings and thereafter pass an order. It is make clear to the Adjudicating Authority, unless and until the order of this Tribunal dated 13/8/1999 is complied, the Adjudicating Authority shall not pass any adjudication order. With these terms, the appeals are disposed of by way of remand.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

(B. Ravichandran)

Member (Technical)

Ritu

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