M/S. Mideast Integrated Steels Ltd vs Commissioner Of Central Excise, ...

(ARISING OUT OF ORDER-IN-ORIGINAL NO.CCE/BBSR-I/18/2013 DATED 19.12.2013 PASSED BY COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-I)

M/S. MIDEAST INTEGRATED STEELS LTD.

APPLICANT/APPELLANT VERSUS

COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-I ...RESPONDENT

APPEARANCE:

SHRI K.K.ACHARYA, ADVOCATE FOR THE APPLICANT/APPELLANT;

SHRI S.SHARMA, A.R.( COMMR.) FOR THE REVENUE.

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER

Date of Hearing & Decision:19.01.2015

ORDER NO.FO/A/75027/2015

Per Dr. D.M.Misra

This is an Application seeking waiver of predeposit of duty of Rs.26.35 crore and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 1944.

2. At the outset, ld. Advocate for the Applicant submits that the Applicant is an 100% EOU engaged in the manufacture of Pig Iron falling under Chapter 72 of CETA,1985. A Show Cause-cum-Demand Notice was issued to them on 29.04.2013, alleging short payment of duty, on account of removal of pig ironand pig iron scrap of 7884.34 MT and 1957 MT during 2008-09; 86363.016 MT and 7274.000 MT during 2009-10; and 12.457 MT during 2010-11, respectively. He has further submitted that the demand had been confirmed only on the basis of difference between the production figures shown in the Balance Sheets and that mentioned in their respective ER-2 returns, for the relevant periods. He submits that a Show Cause Notice was also issued for the period, 2008-09, by DGCEI, and adjudicated by the ld. Commissioner, vide Order No.CCE/BBSR-I/07/2013 dated 18.03.2013. Aggrieved by the said Order they had preferred an appeal along with stay application before this Tribunal, vide Appeal No.E/A/70733/13. While disposing their stay application after taking into consideration the payments made, the Tribunal vide Order No.SO/76720/2014 dated 20.11.2014, had waived the predeposit of the balance dues adjudged and stayed its recovery during the pendency of the appeal.

He also submits that they werenot given an effective hearing and the Order had been passed ex-parte. Thus, they could not explain before the Adjudicating Authority about the error in the Balance Sheet. However, he fairly accepts that even though the Show Cause Notice was issued to them on 29.04.2013, yet, they had neither filed any reply to the Show Cause Notice, nor any extension of time was sought for filing the reply to the Show Cause Notice. Explaining the difference in the production in two sets of their own records, he submits that since an error had been crept into the Balance Sheet for the financial year, 2009-10, in recording the figures of production, there is an apparent difference in the production figures. In support of his contention that there was an error in the Balance Sheet for the period, 2009-10, he has filed the Statutory Auditors Certificate dated 05.12.2014, supported by an affidavit. He prays that the Applicant had incurred huge losses due to stoppage of mining activities, and any deposit at this stage would cause undue hardship to them. He prays that the matter may be remanded to the adjudicating authority for fresh decision.

3. Ld. AR for the Revenue reiterated the findings of the ld. Adjudicating authority. He submits that the Applicant had neither filed any reply to the Show Cause Notice nor submitted any document(s)before the adjudicating authority. It is his submission that the Balance Sheets vis-vis the Auditors Certificate now produced need to be scrutinized in detail, before accepting the claim of the Applicant. He has no objection in remanding the case to the adjudicating authority, however, to avoid further delay a time frame be fixed for the adjudication process.

4. After hearing both sides, we find that the Appeal itself could be disposed off, at this stage. Accordingly, after waiving the requirement of predeposit and with the consent of both sides, we take up the Appeal for disposal.

5. We find that the impugned Order has been passed ex-parter/ and also it is not disputed that the Appellant had not filed their reply to the Show Cause Notice nor appeared for hearing before the Adjudicating Authority. We are not impressed with the arguments of the ld. Advocate for the Appellant that they could not get sufficient time to submit their reply, after issuance of the Show Cause Notice, and later on, they were not accorded an opportunity of personal hearing even though on the date of hearing they visited the Office of the Commissioner. On the contrary, prima facie, from the records and the impugned Order it can easily be inferred that there has been lack of sincerityon the part of the Appellant in participating in the adjudication proceedingbefore the Commissioner. However, in the interest of justice, we are of the view that the Appellant be given a chance to place all the documents before the ld. Commissioner in support of their defense/claim. Also, we are concerned with the submission of the ld. AR for the Revenue that a time frame be fixed for the process of adjudication.The Appellant claim that they are now ready with their reply to the Show Cause Notice and could file their reply within two weeks from the date of communication of this Order.Accordingly, the Appellant is directed to file their reply within two weeks from the date of the Communication of the Order. Thereafter, the ld. Commissioner should take necessary steps to adjudicate the case, preferably within four weeks from the date of receipt of the reply to the Notice. The Appellant are directed to co-operate with the Department, without seeking unwarrantedand frivolous adjournments. The Appeal is allowed by way of remand. Stay Petition disposed off.

(Dictated and pronounced in the open court.) Sd/ on 02.02.2015 Sd/ on 30.01.2015 (I.P.LAL) (D.M.MISRA) TECHNICAL MEMBER JUDICIAL MEMBER

DUTTA/

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