Shri Suniel Gehlot vs C.C.E. & S.T. Jaipur

[Arising out of Order-in-Original No. 17-21-RDN-CE-JPR-II-2013 dated 28.02.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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?

Shri Kailash Joshi

Shri Buddhi Prakash

M/s. Shree Raj Pan Masala Pvt. Ltd.

Shri Ram Kishore Bhadu

Shri Suniel Gehlot .Appellants

Vs.

C.C.E. & S.T. Jaipur .Respondent

Appearance:

Shri Ajay Singh & Shri S.P. Mathew, Advocate for the Appellants

Shri R.K. Mishra, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 06.05.2015

FINAL ORDER NO. 51563-51567/2015-EX(SM)

Per Ashok Jindal:

The appellants are in appeals against the impugned orders.

2. The facts of the case are that on 10.08.2008 and 12.08.2008 search was conducted at the premises of the main appellant namely M/s. Shree Raj Pan Masala Pvt. Ltd. and certain goods were seized. In past i.e. in April 2008 another search took place in 16 places of the appellant and goods were seized. Those goods were released in the month of June 2008 provisionally. Thereafter, a show cause notice was issued by the appellant on 26.03.2009. The proceedings against the said show cause notice were pending before the Commissioner Central Excise, Jaipur. In between on the basis of these searches another show cause notice was issued to the appellant which is impugned before me. On the basis of the statements and investigation conducted in the show cause notice dated 26.03.2009 the adjudicating authority fixed the matter for disposal for adjudication and called the appellants for personal hearing on 18.11.2010, 27.12.2010, 02.03.2010 and 04.03.2010. On all the occasions appellant did not turned up. Therefore, adjudicating authority passed the ex party order. Said order was challenged before the Ld. Commissioner (A) who observed that the order of adjudicating authority as an ex party is correct as the appellants have not availed the opportunity of being heard before the adjudicating authority nor they have filed any reply to the show cause notice. Aggrieved from the said orders appellants are before me.

3. The Ld. Counsel for the appellants submits that apart from merits the impugned order are in gross violation of principle of natural justice. Therefore, same are required to be set aside and matter be remanded back to the adjudicating authority as the impugned show cause notice has been issued on the basis of investigation conducted in the show cause notice dated 26.03.2009 and which was pending before the adjudicating authority during the relavent time. The documents relied upon in the said show cause notice and the statements / cross objection of the witnesses is very much relevant for adjudication of the impugned matter and the said opportunity has not been availed by the appellant for which the appellant vide their letter dated 09.03.2011 requested to the adjudicating authority to keep the proceedings in abeyance was not considered and passed the order ex party on 18.04.2011. Therefore, the matter is required to be set aside.

4. On the other hand Ld. AR submits that the four opportunities have been given to the appellants and they did not bother to file reply to the show cause notice as well as made appearance before the adjudicating authority. Therefore, the adjudicating authority has followed the principle of natural justice and pass the order correctly and same has been observed by the Ld. Commissioner (A) by observing that the show cause notice dated 26.03.2009 have no relevance to the facts of this case.

5. Heard the parties. Considered the submission.

6. In this case the statements and certain records are relied by the adjudicating authority pertains to the proceedings initiated vide the show cause notice dated 26.03.2.2009. The said show cause notice was pending adjudication before the Commissioner Central excise Jaipur during the relevant time. The letter dated 09.03.2011 making the request to the adjudicating authority to keep abeyance of the proceedings as the cross examination and relied upon documents in the proceedings initiated through show cause notice dated 26.03.2009 are very much relevant for adjudication of the case. The said letter was not considered by the adjudicating authority. Therefore, I hold that while passing the adjudication order adjudicating authority has not followed principle of natural justice. Consequently, the observation of the Ld. Commissioner (A) for not following the principle of natural justice are incorrect.

7. In these circumstances, I set aside the impugned orders and remand matter back to the adjudicating authority for de novo adjudication after granting reasonable opportunity to the appellants to present their case. Appeals are allowed in the above terms by way of remand.

(Dictated and pronounced in the open court.)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/58492-58494, 58679-58680/2013-EX(SM)