Harison Steel Pvt. Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/788-790/08

(Arising out of Order-in-Original No.9/MS-9/2008/Thane-I dated 16/04/2008 passed by Commissioner of Central Excise, Thane)

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

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

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Harison Steel Pvt. Ltd., Mr.Daulat Kumar Hariram Fulwadhya Appellants Mr.Ashok Kumar Hariram Fulwadhya Vs. Commissioner of Central Excise, Respondent Thane-I

Appearance:

Shri.H.G.Dharmadhikari, Advocate for appellant Shri.V.K.Agarwal, Addl. Comm. (AR), for respondent

CORAM:

Honble Mr.Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 09/09/2015 Date of Decision : 09/09/2015

ORDER NO

Per: Anil Choudhary

1. The appellants are in appeal against Order-in-Original No.9/MS-9/2008/Thane-I dated 16/04/2008 passed by Commissioner of Central Excise, Thane, whereby Cenvat credit amounting to Rs.64,83,426/- was held to be wrongly availed and ordered to be recovered along with interest. Further equal amount of penalty was imposed on the appellant company under Rule 13 (2) of the Cenvat Credit Rules, 2001 read with Rule 13 (2) of Cenvat Credit Rules, 2002 and read with Section 11AC of Central Excise Act, 1944. A penalty of Rs.10.00 lakhs was imposed on Shri Daulat Hariram Fulwadhya, Director of M/s.HSPL under Rule 13 (1) of Cenvat Credit Rules, 2001/2002. A penalty of Rs.5.00 lakhs was imposed on Shri Ashok Kumar Hariram Fulwadhya, Director of M/s.HSPL under Rule 13 (1) of Cenvat Credit Rules, 2001/2002 and Rs.5.00 lakhs on M/s.Amar Amit Jalna Alloys Pvt. Ltd., Jalna, under Rule 13 (2) of Cenvat Credit Rules, 2002. Further a penalty of Rs.5.00lakhs was imposed on Shri Surya Prakash Demda, Director of M/s.Amar Amit Jalna Alloys Pvt. Ltd. under Rule 13 (1) of Cenvat Credit Rules 2001/2002. Aggrieved by the order, the appellants are before this Tribunal.

2. The learned Counsel submits that the appellant did not get opportunity of proper hearing during the adjudication proceedings and neither relied upon documents were given to them nor any opportunity was given for cross examination of the persons whose statements were relied upon by the Revenue in framing the charge. We find that the issue of not providing opportunity of cross examination explained by this Tribunal vide order dated 14/07/2015.

3. Learned DR submits that they are having the original documents which shall be made available to the learned Counsel for the appellants for inspection and also provide the legible copy of the same.

4. In this view of the matter, we find it just and proper to remand he matter back to the adjudicating authority for re-determination after giving an opportunity of hearing to the appellants in accordance with law.

5. We further direct the learned DR for the Revenue to provide legible copies of the documents to the learned Counsel for the appellants and the acknowledgement would be retained by the Revenue and the duplicate copy be filed with this Tribunal and comply within 30 days from today. We take note of the fact that Writ Petition filed with the Honble High Court by the Director of the appellant, i.e. Shri Ashok Kumar H Fulwadhya and Shri Daulat Kumar H Fulwadhya. The Honble High Court vide its final order dated ..have observed that Rule 13 of the Cenvat Credit Rules, it is evident that within its scope only that person who takes Cenvat Credit. Accordingly, the Honble High Court was.(Stay order of this Tribunal) and directed the Director to deposit Rs.25,000/- as penalty and directed the Tribunal to hear the Director without any pre-deposit. In view of the decision of the Bombay High Court the appeals of the directors were stand allowed and it is held that no penalty under Rule 13 (1) of the CCR 2001 is impossible. This Tribunal also took note of the fact that the Directors Shri Ashok Kumar H Fulwadhya and Shri Daulat Kumar H Fulwadhya have passed away and the appeal against the order dated 14/07/.. In these circumstances, we direct the appellant company to appear before the adjudicating authority between 01 to 10th November 2015 and seek an opportunity of hearing. We further observe that the pre-deposit made during the course of investigation and the pendency of these appeals shall refundable subject to the completion of proceedings. The appellants to undertake to refund the amount prior to completion of the adjudication proceedings. Thus the appeals are allowed by way of remand.

(Dictated in Court)

(Raju) Member (Technical) (Anil Choudhary) Member (Judicial)

pj

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