ORDER
V.K. Ashtana, Member (T)
1. In these stay applications against Order-in-Original No. 41/98 confirming the duty demand of Rs. 17,72,027/-, imposing penalty of Rs. 5 lakhs, the applicants have prayed for complete waiver and stay.
2. Heard Learned Consultant Shri M.S. Kumaraswamy for the appellants who submitted that the impugned Order-in-Original is bad in law for the following reasons:
a) The order does not consider their submissions in the reply to show cause notice in paras 6 & 7 that since they are not the importers, therefore they are not liable for any duty or penalty. Learned Consultant submits that the Order-in-original is totally silent on this issue.
b) In Para-12 of the order impugned, it has been noted by the Commissioner that a Certificate dated 4.12.1997 was issued by the Assistant Commissioner of Central Excise, Pondicherry regarding the reversal of the modvat credit by the supporting manufacturer who fell under the jurisdiction of that Assistant Commissioner. However, Learned Commissioner has held that the said certificate was neither adequate nor in proper form. The Commissioner had requested the importer to produce a proper certificate containing complete details within a fortnight. The order further holds that since no reply has been received even after seven weeks, therefore the said certificate has been rejected out of consideration. Learned Consultant submits that firstly they are not the importers and secondly they are not the source of the said certificate. If the Customs authorities at Chennai felt that the certificate was not in the proper form or that adequate information therein was not available, the Customs and Central Excise department being under the same Central Board of Excise & Customs, the Learned Commissioner should have taken-up the matter with his counterpart and arranged for a certificate in the proper proforma to be supplied to Customs by the Central Excise authorities. Asking the present appellants to get this certificate was not fair in as much as that they had no control over the Assistant Commissioner who had already issued the certificate to the best of his ability. Further, the Learned Consultant submits that merely because the certificate was not in the proper proforma, it could not be rejected by the Sister department of Customs. This itself shows that principles of natural justice have been violated by the order impugned.
c) To substantiate their claim that they are not the importers and therefore they are not liable to this duty and penalty, appellants had requested this Tribunal to call for Original Bills of Entry which would be the most reliable evidence in this behalf.
Accordingly, by our MISC order No. 625/98 dated 26.10.1998, this Tribunal had ordered that the Commissioner would produce the case records etc. by 26.11.1998 on which date the Learned JDR sought for some more time. Though the case records have been obtained and seen by both the sides, it is now submitted by the Learned Consultant that the relevant Bills of Entry connected with this case are not available in those records. Therefore, the Learned Consultant submits that in view of this, he shall submit the photocopies of five Bills of Entry out of nine Bills of Entry which are on his record as evidence in this behalf. These Bills of Entry, Ld. Consultant submits, show that the importer of the goods concerned in this case is someone else and not the present appellants.
3. Therefore, the Learned Consultant submits that in view of these infirmities in the Order-in-Original impugned as well as the fact that the name of the importer is different from the appellants on at least five out of 9 Bills of Entry of photocopies available on their record, there is a strong prima facie case that there has been miscarriage of justice as also that the impugned order is a non-speaking order. Under these circumstances, he prays for complete stay and waiver. He also submits that in view of non-speaking nature of the impugned order-in-original which has been issued to a person who is not the importer in view of Bills of Entry copies being submitted by him, the matter could be remanded for de novo consideration to the original authority.
4. Heard Learned JDR Shri S. Sankaravadivelu who submits that case records have been sent by the Custom House but a perusal thereof shows that the 9 relevant Bills of Entry are somehow not available in these records. He seeks for more time to seek instructions from the Custom House in this matter.
5. We have carefully considered the submissions on both sides as well as records of the case including the photocopies of Bills of Entry which are available on record. We find that in these Bills of Entry, the importer’s name and address is M/s. KAMAL ENTERPRISES who it appears is the transferee of the said Advance Licence whereas the Order-in-original seeks to confirm duty and penalty on M/s. MAHESWARI ENTERPRISES who are the present appellants. We further find that whereas in reply to the show cause notice, the appellants had submitted that they were not the importers at all, the impugned Order-in-original does not discuss this in any details. We also find that though the Assistant Commissioner of Central Excise had issued the certificate regarding the reversal of this stated amount of MODVAT credit, this has been summarily rejected by the Order-in-original impugned on the ground that the information contained therein was either not adequate or was not in the proper format. We are unable to subscribe to this position because there was sufficient time available for the Learned Commissioner who have taken-up the matter with his counterpart in the Central Excise Commissionerate concerned for issue of a more detailed and, if necessary, a proper certificate in the proper proforma from the Assistant Commissioner concerned. Asking the present appellants who are not even the importers as per these Bills of Entry to produce within seven weeks was certainly not a step in the interest of justice. The Revenue in the CBEC has already notified a detailed procedure for the verification of reversal of credit in this respect and if the Assistant Commissioner had not followed those orders of the Government, then the Learned Commissioner as also a part of the Central Board of Excise & Customs should have taken-up the matter with the authorities concerned to ensure that the correct procedure was followed. Asking the importers to ensure this was certainly not the correct way to go about.
6. In view of these findings, we find that the matter lies on a short compass and therefore we waive the pre-deposit and stay the recovery and proceed to consider the main appeals themselves.
7. In view of the aforesaid analysis, we find that the Order-in-Original impugned is suffering from various infirmities noted above. There is also no evidence in the form of original Bills of Entry in the records called for from the Custom House. Therefore, it is not possible for this Tribunal to take a final decision on the question who should be, if at all necessary, liable for the duty confirmed in the order impugned. Under these circumstances, we set aside the impugned Order-in-original and remand the matter for de novo consideration to the original authority. While deciding the matter de novo, the Learned original authority shall consider all the pleas raised in their behalf by the appellants and any other persons concerned and decide the matter through a speaking order, after hearing them.
8. The appeals are allowed accordingly by way of remand.
(Pronounced and dictated in open court).
