Commissioner Of Central Excise, ... vs M/S. Hydromet (India) Ltd
- CitationAppeal No.09/2012 (M-III), dated 16.02.2012 passed by the Commissioner of Central Exci
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) cannot set aside an adjudication order merely because the documents relied upon were not supplied to the assessee or because cross-examination was not allowed, without first examining the merits of the dispute; where the assessee has not properly applied for documents or requested cross-examination, such defects are to be remedied by remand to the adjudicating authority to furnish the relevant documents and permit cross-examination, so that the assessee gets a reasonable opportunity of defence. Where the appellate authority has recorded a discrepancy between the weighment slip and the recorded stock, reconciliation of that discrepancy must be undertaken before the adjudication can be set aside on that basis. A plea that goods were stolen, resulting in their non-existence, requires verification by the adjudicating authority and cannot be disposed of summarily by the appellate authority on the ground that the matter travels beyond the show-cause notice.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.09/2012 (M-III), dated 16.02.2012 passed by the Commissioner of Central Excise (Appeals), Chennai]
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-III APPELLANT
Versus
M/s. HYDROMET (INDIA) LTD. RESPONDENT
Appearance:
For the Appellant Ms. Indira Sisupal, AC (AR)
For the Respondent Ms. D. Naveena, [No vakalat on file] Proxy Advocate
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 04-09-2015
FINAL ORDER NO. 41192 / 2015
Inspite of two passovers, Advocate for respondent did not turn out. It is mentioned by Ms. D. Naveena, Advocate in the bar that Shri M. Kannan has personal difficulties.
2. The matter was examined on the basis of materials on record.
3. Revenue supports adjudication.
4. When the appellate authority has recorded that there was a discrepancy between the weighment slip and the recorded stock, reconciliation ought to have been made at the interest of justice. Assessee required the documents to be provided by the Department for its defence. But that was not done. Learned Commissioner (Appeals) without going into the matter came to the conclusion that when the documents were not given to respondent adjudication is to be set aside, which is wrong.
5. Secondly, when the goods were not available on the plea of theft, learned Appellate authority took a view that the matter is beyond show-cause notice. He has not brought out how and in what circumstance the adjudication arose on such count. But reached to a bald conclusion summarily.
6. Thirdly, learned Commissioner (Appeals) has recorded that cross-examination was not given. When that was not done, adjudication ought not have been be set aside. It does not appeal to commonsense how the adjudication shall be set aside on such reasoning without testing the evidence following the course of natural justice.
5. In view of the above and to protect the interest of justice, the matter is remanded to the Adjudicating authority. He is directed to provide relevant documents to appellant upon proper application to defend its case and allow cross-examination on the basis of the evidence and circumstances of case. The plea of theft resulting in non-existence of stolen items need verification. In the result, matter is remanded to the Adjudicating authority for grant of reasonable opportunity of defence and pass appropriate order.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 10-09-2015
DRAFT Remarks
I II III
Date of dictation 04.09.2015
Draft Order - Date of typing 07.09.2015
Fair Order Typing 10.09.2015
Date of number and date of dispatch 11.09.2015
4 E/00282/2012
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