ORDER
G.R. Sharma, Member (T)
1. Arguing the case for waiver of pre-deposit of duty amounting to Rs. 25,56,893/- and an equal amount of penalty, Shri P.K. Mittal, Ld. Counsel submits that in this case, there has been total failure of justice because of non-observance of principles of natural justice. He submits that all records of the factory were taken by the Excise authorities; that when the applicant requested the Department to furnish copies of the relied upon documents, instead of furnishing the copies, they were asked to take copies of whatever records they want. He submits that when their representative visited the office of Asst. Commissioner, he was given only a few documents and other documents were not supplied. He submits that in the absence of supply of relied upon documents. He was not in a position to prepare his defence effectively. Ld. Counsel submits that this has become a great handicap for him. He also submits that a date of hearing wag fixed but, as the date of hearing was not convenient to him and as he had not taken the copies of the records, he sought adjournment of the date of hearing. He submits that no doubt in the Order-in-Original, Id. Commissioner has held that notice for personal hearing was issued to but Id. Counsel submits that no such notice was received by the applicant.
2. Ld. Counsel submits that there was no manufacture involved in this case. In so far as the making of Capsules is concerned, the medicine was as such only a part of the capsule was replaced. He submits that their case was fully covered by the provisions of Rule 173H. Ld. Counsel submits that in the case of Tablets, some moisture had crept in the tablets and therefore, only removal of moisture was undertaken.
3. Ld. Counsel also submits that the applicant’s factory is lying closed for about two years that their case has been registered by BIFR for rehabilitation; that in the proceedings, it has been noted that the total capital of the applicant’s factory has been eroded by accumulated losses. Ld. Counsel also submits that applicant has no resources to make any payment in the instant case.
4. Ld. Counsel also submits that the limitation issue comes into picture in this case inasmuch as the entire information regarding date of receipt of the tablets was furnished to the Department in the Form D-3. He submits that receipt of the Form D-3 is accepted by the authorities and there should be no dispute. He submits that since the entire position was clarified in the D-3 intimation, there was no suppression or mis-statement on the part of the applicant unit. He therefore, submits that the demand is partly time barred.
5. Ld. Counsel also submits that reliance on the amended Chapter note under Chapter 29 is not very relevant inasmuch as this explanation in the Chapter note now relied by the Revenue was included only in 1997. Ld. Counsel therefore prays that pre-deposit of duty and penalty may be waived and the matter may be referred back to the ld. Commissioner. He undertakes to co-operate for early finalisation of the issue provided copies of the relevant documents are supplied.
6. Shri Rajiv Tandon, ld. SDR opposes this request. He submits that Chapter note under Chapter 29 provides that the process undertaken by the applicant amounts to manufacture. He therefore, submits that since there was manufacture, duty has rightly been demanded.
7. On the question of the case being registered with BIFR, the ld. SDR submits that the Hon’ble Allahabad High Court in the case of M/s. Amrit Banaspati Co. Ltd. v. Commr. (Appeals) C.Ex. Ghaziabad , held that the relevance of registration of the case with BIFR is applicable only when the rehabilitation scheme has been prepared by the agency appointed by the B.I.F.R. and liabilities arising out of the demands raised by the Central Excise authorities have been included in the rehabilitation scheme.
8. In so far as denial of justice on account of non-observance of principles of natural justice is concerned, he submits that in the instant case, the applicant was directed to obtain copies of relevant documents which he needs. He submits that pursuant to this direction, the admitted position is that some representative of the applicant visited the office of Asst. Commissioner and took some copies of the relied upon documents. He submits that after that, the Adjudicating authority issued a notice for hearing and that on the request of the applicant, the date was changed He submits that there is no evidence on record to support the case of the applicant that this notice was not received by the applicant. He submits that thus there was no denial of natural justice. Regarding the demand being time barred, the Id. DR reiterates findings of the Ld. Commissioner.
9. We have heard the rival submissions. We note that a number of issues arise in the instant case. We find the applicant’s case has been registered with BIFR. We also note that the entire capital of the applicant firm is eroded because of accumulation of losses. We further note that the factory of the applicant firm is closed for about two years. We also find that other issues arise which are contentious. We find that no effective hearing was available to the applicant. Looking into all these facts, we find it to be a fit case for remand. Looking into the facts and circumstances, we hold that pre-deposit of duty and penalty will create undue hardship to the applicant. We waive pre-deposit of duty and penalty and remand the matter to the ld. Commissioner with the direction that the applicant may be allowed taking copies of the relevant documents and furnish the reply. The ld. Counsel for the applicant undertakes to furnish a list of documents required by him for defending his case which would be given by the authorities concerned. Since the matter is a old one, adjudicating authority is directed to complete the proceedings within four months from the date of receipt of the order. The ld. Counsel for the applicant undertakes to co-operate at all stages.
10. The Stay Petition and the Appeal are disposed of in the above terms.
(Dictated and Pronounced in the Court).