ORDER
V.K. Ashtana, Member (T)
1. This is an appeal against Order-in-Appeal No. 201/98 (M-II) dt. 11.6.98 which has upheld the Order-in-Original No. 81/97 dt. 28.11.97. In this Order-in-Original, duty demand of Rs. 1,50,000 was confirmed and since it was paid earlier even issue of the show cause notice dt. 14.3.97 same was adjusted against the said confirmation of duty demand. Further, the goods which had been provisionally released were held liable for confiscation and an amount of Rs. 65,000 deposit as security against B-11 Bond was appropriated in lieu of confiscation. A penalty of Rs. 25,000 was also imposed. However, the charges against the career namely Transport Corporation of India was dropped and the vehicle which transported the goods was also released unconditionally.
2. Heard Shri R.Thiagaraj n, Ld. Advocate assisted by Shri M.Mosilamoney, Ld. Consultant for appellants. Ld. Advocate submits that the only evidence in this case are the statements of one Smt. Jeyalakshmi, Taxation Manager and Shri Rajasekhar, Managing Director both of whom were kept in confinement beyond midnight and, therefore, they are inculpatory statements. However, he fairly concedes that these were retracted only at the time of reply to show cause notice. In particular, Ld. Advocate submits that in reply to SCN they had submitted to the Ld. adjudicating authority that the goods provisionally released were available in the guidance of TCI at Ujjain (place of seizure) and same can be asked by the department and brought out to Chennai before the adjudicating authority in terms of directions contained in the personal hearing intimation received by them. Ld. adjudicating authority did not consider these submissions and instead proceeded to appropriate security amount against B-ll Bond. This renders the order unjust and without application of mind.
3. Ld. DR Shri S. Sankaravadivelu reiterates the Order-in-Original and submits that it is not correct to say that only evidence was the two statement as the goods were themselves were concealed in transit in Ujjain and without any Central Excise duty paying documents accompanying the same. Therefore there is no error in the Order-in-Original or Order-in-Appeal.
4. I have carefully considered the rival submissions and records of the case. I find from the records of the case that it is clear that appellants had offered the seized goods which had been provisionally released for consideration and inspection at the time of personal hearing and in the reply submitted before the adjudicating authority. However, the original authority did not consider these submissions and instead treated as if the goods were not available for confiscation and appropriated the said amount of Rs. 65,000 against the B-ll bond. This is one of the grounds in the appeal before me. I find that in view of clear proposition made before the lower original authority that the goods were in fact available physically at the place where they were seized and released provisionally, therefore the original authority should have considered these submissions instead of hurriedly appropriating the bond amount. This amounts to denial of principles of natural justice and makes the order a non-speaking one. Ld. Advocate further submits that even today the goods are available, in a deteriorated condition, now at Chennai and can be made available for consideration by the adjudicating authority if need be.
5. In view of the aforesaid findings, I set aside the Order-in-Appeal impugned and the attendant Order-in-Original and remand the matter for de novo reconsideration to the original authority who is directed to consider the submissions of the appellants with respect to availability of the goods which are to be considered in terms of the show cause notice. It is needless to say that the Ld. original authority shall hear the appellants in the de novo proceedings and then pass a considered speaking order. Appeal succeeds accordingly by way of remand. Since, the matter fairly is old, it is expected that these de novo proceedings shall be conducted as expeditiously as possible.