M/S. Sidhi Vinayak Metcom Ltd vs Cce & St, Jamshedpur

(Arising out of Order-in-Original No.02/Commr/2014 dated 08.01.2014 passed by the Commissioner of Central Excise & Service Tax, Jamshedpur.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M.MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)

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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. Sidhi Vinayak Metcom Ltd. Shri Vijay Kumar Mittal Applicant (s)/Appellant (s)

Vs.

CCE & ST, Jamshedpur Respondent (s)

Appearance:

Shri A.K.Srivastava, Advocate for the Appellant(s)

Shri A.Roy, Supdt.(AR) for the Revenue

CORAM:

Honble Dr. D.M.Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)

Date of Hearing :- 16.09.2015 Date of Pronouncement :- 16.09.2015

ORDER NO.FO/A/75496-75497/2015

Per Dr. D.M.Misra.

1. Heard both sides.

2. These two applications are filed seeking waiver of pre-deposit of duty of Rs.1.65 Crores and equal amount of penalty under section 11AC read with Rule 25 of Central Excise Rules, 2002 and personal penalty of Rs.50.00 Lakhs on the director Shri Vijay Kumar Mittal under Rule 26 of the Central Excise Rules, 2002.

3. Shri A.K.Srivastava, ld.Advocate for the applicant submits that the demand has been confirmed against them alleging clandestine manufacture and removal of manufactured goods, namely, sponge iron during the period 21.05.2009 to 07.05.2010. He submits that the adjudicating authority has referred to and relied upon the data retrieved from the Pendrive/external hard discs maintained by one Shri Manoj Kr.Pandey, who was not an employee of the applicant. He has further submitted that since the applicants were not provided with all the documents referred to and relied upon in the notice, therefore, they could not file a proper reply to the show cause notice. He submits that the evidences discussed by the adjudicating authority in confirming the demand against the applicants are rebuttable and they can adduce evidences in support of their claim that the goods alleged to have been removed without payment of duty, in fact, based on assumptions and presumptions and they have cleared all their manufactured goods during the said period on payment of duty after recording in the statutory registers and on preparation of excise invoices. He however fairly accepts that the reply could have been filed on the basis of evidences available with them without waiting for all the documents that were necessary for preparation of the reply. At this stage on the instruction of his client he makes an offer to deposit seven and half per cent of the confirmed duty, and prays that they may be given a fair chance to plead their case before the adjudicating authority.

4. The ld.AR for the Revenue reiterated the findings of the ld.Commissioner. The ld.AR submits that in spite of ample opportunity allowed to the applicant, they have neither filed reply to the show cause notice nor appeared for personal hearing before the Commissioner. The ld.Commissioner after analyzing each and every piece of documents/evidence confirmed the demand and imposed the penalty. However, he has no objection in remanding the case to the adjudicating authority for affording a last opportunity to the applicants to present their case.

5. After hearing both sides for some time, we find that the appeals itself could be disposed of at this stage. Accordingly, with the consent of both sides the appeals itself are taken up for disposal.

6. We find that this is a case of alleged clandestine removal of the manufactured goods by the appellant, namely sponge iron, from their factory without payment of duty. Also, we find that the ld.adjudicating authority after analyzing the evidences collected by the investigating authority, in the form of statements, data retrieved from portable hard disc, Pendrive and other incriminating documents, such as, sale and purchase ledger, weighment slip, bank register, Daily Kanta Report, Sauda Register etc. confirmed the allegation of clandestine removal. The contention of the appellants on the other hand is that the said evidences were not allowed to be rebutted by them by filing reply to the show cause notice as all the relevant documents, had not been supplied to them. We find from the observation of the ld.Commissioner that ample opportunities had been provided to the appellant to submit their reply to the show cause notice. But the appellants had kept on asking for extension of time to file the reply and participate in the adjudication proceeding. The defense of the appellant for not filing the reply and attend the personal hearing is that all relevant documents were not supplied to them.

However, before this Tribunal, the ld.Advocate could not able to explain which documents were relevant, but not supplied to them. Keeping in mind that justice cannot be achieved by not affording an opportunity to the Appellant to rebut the allegation leveled against them, we are of the view that the matter be remitted to the adjudicating Commissioner for deciding the issues afresh after affording an opportunity of hearing to the appellant and allow them to file reply to the show cause notice, in support of their defense. However, it is necessary to put some conditions on the appellants before remanding the case to the adjudicating authority. Consequently, the Appellant No.1 M/s.Sidhi Vinayak Metcom (P) Ltd. is directed to deposit seven and half per cent of the confirmed duty within a period of eight weeks from the date of communication of the order and report compliance directly to the ld.Commissioner. After recording compliance, the ld.Commissioner would proceed with the adjudication, to decide all the issues afresh. He is also directed to consider the request for providing the relevant documents, if the list of such documents necessary for the defense are submitted to the department and these are in possession of the department.

Needless to mention a reasonable opportunity of hearing be granted to the appellants. All issues are kept open. Appeals allowed by way of remand. Stay Petitions are disposed of.

(Operative part of the order was pronounced in the open court.)

SD/ SD/

(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

5

Appeal No.EA-75812, 75848/14