M/S. Nampa Steel vs Commr. Of Central Excise , Haldia
- Case No.Excise Appeal No. ST/76146/2014
Ratio decidendi
The rule this decision rests on
Where the adjudicating authority has decided a matter ex parte because the assessee failed to appear and failed to file a reply to the show cause notice, and the assessee's non-compliance is attributable to closure of the factory and the departure of the dealing assistant, the appellate tribunal may, in the interest of justice, set aside the ex parte adjudication and remand the matter with a direction that the assessee be afforded an opportunity to file its reply and to be heard in person, conditional upon the assessee depositing a specified sum as pre-deposit, with all issues kept open for fresh decision.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Appeal No.16/Commissioner/CE/Haldia/Adjn/2014 dated-05/05/2014 passed by the Commissioner of Central Excise, Kolkata)
For approval and signature of:
DR. D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
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1. Whether Press Reporters may be allowed to see : 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 : 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 Departmental : Authorities ?
M/s. Nampa Steel APPELLANT(S) VERSUS Commr. of Central Excise , Haldia RESPONDENT(S)
APPEARANCE
Sri B.N. Chattopadhyay, Consultant FOR APPELLANTS Sri A. Roy, Supdt. (A.R.) FOR THE RESPONDENTS
CORAM: DR. D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 08.01.2015
ORDER NO.FO/75031/2014
Per DR. D.M. MISRA
This is an application filed seeking waiver of pre-deposit of duty of Rs.52.90 Lakhs and equal amount of penalty imposed under Section 11AC of CEA, 1944.
2. At the outset, the Ld. Consultant Shri B.N. Chattopadhyay submits that the factory has been closed since 2008-2009. Consequent to the audit of their records in the year 2013, and on a comparison of the entries of raw materials/finished goods in their statutory records with that of the Balance Sheets, some apparent discrepancy were found and a demand notice was later issued on 08.05.2013 invoking extended period of limitation. He submits that the duty on the alleged differential quantity has been demanded without any corroborative evidence of removal of goods without payment of duty, except on the basis of a mere comparison of the entries in the records. He, further submits that since the factory has been closed, they could not defend the case by filing a proper reply to the demand notice and requested for time to the Ld. Commissioner. He submits that the company has been incurring heavy losses and it would be impossible on their part to deposit the confirmed amount. However, at this stage on the instruction of their clients, he offers to deposit Rs.2.00 Lakhs and submits that the matter may be remanded to the adjudicating authority and he undertakes to file a proper reply to the demand and participate in the adjudication proceeding.
3. Ld. A.R. for the Revenue, reiterated the findings of the Ld. Commissioner. However, he has no objection to remand the matter to the Commissioner.
4. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, with the consent of both sides, we take up the appeals for disposal.
5. We find that the adjudicating authority has decided the case ex- parte as the appellant had failed to appear before the adjudicating authority in spite of repeated opportunities were allowed to them. Also, we find that the appellant had not submitted their reply to the show cause notice even after a considerable time elapsed from the date of issuance of notice. The Ld. Consultant has submitted that their factory had been closed for a long period of time and the dealing assistant left the company. Hence, the reply could not be filed by the adjudicating authority. In the interest of justice, we are of the view that it would be appropriate to allow an opportunity to the appellant to file their reply to the notice as well as to appear for personal hearing before the adjudicating authority. Consequently, we direct the appellant to deposit the offered amount of Rs.2.00 Lakhs (Rupees Two Lakhs) within eight weeks from the date of the communication of the Order and report compliance directly to the Ld. Commissioner. The Ld. Commissioner after recording compliance, would proceed to decide the matter afresh. Needless to mention that the appellant be given a fair opportunity of hearing. All issues are kept open. Appeal is allowed by way of Remand. S.P. disposed off.
(Pronounced and dictated in the open Court) Sd/- 02.02.2015 Sd/- 30/01/2015 (I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) k.b/-
Excise Appeal No. ST/76146/2014
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