ORDER
Shri G.A. Brahma Deva (Oral)
1. These are 4 appeals. These appeals arise out of and are directed against the impugned order No 36/97 dated 27.10.97 passed by the Commissioner, Central Excise & Customs, Cochin.
2. Shri MNS Nayar, Advocate appearing for the appellants submitted that this matter is coming before the Tribunal for a second time. Earlier the Tribunal is per order No 223/92 dt 18.6.92 has remanded the matter by giving certain directions as per para 4 of the said order. Para 4 of the said order as follows-
“Para 4- We observe that the Departmental authorities have done extensive investigation in regard to the operations of the appellants. They have brought on record evidence by way of statements. There is enough indication to show that the labels have not been accounted for by the appellants. However, it is seen that the learned lower authority instead of working out the duty demand based on this factor has chosen to go by the quantum of tobacco which was brought on record manufactured only one the basis of the quantum of the tobacco. The authority has taken the number of beedis manufactured per Kg. of tobacco as 2,500 and arrived at the figure of 50,71,57,500 of beedis and after taking into account the number of beedis clandestinely removed without payment of duty as 37,22,67,900, numbers. The lower authority has relied upon the evidence regarding labels only as a corroborative circumstance. We observe that the lower authority has rightly taken into consideration the quantum of tobacco utilized for the purpose of working out the figure regarding tobacco. As it is the tobacco which is prescribed as the principal raw material for the manufacturers. In as much, as reliance has been placed heavily on the quantum of tobacco purchased it was incumbent on the part of the authority to have put the appellants on notice in regard to the same and asked the appellants to explain their position in regard to the utilization of the tobacco which had been brought into the EB 3 Register. Not having done that we are of the view that appellants have been prejudiced and for that reason, therefore, the learned lower authority’s order has to be held to be not a proper one. We like to observe here that this is one case where the lower authorities have gathered enough evidence and have done extensive investigation, but that is not enough. It was also an equally duty of the person adjudicating the matter to put the appellants on notice in respect of the various aspects which they are going to take into reckoning for arriving at the demand. In view of the above, we set aside the impugned order, remand the matter and direct the learned lower authority to re-adjudicate the matter in the light of our above observation after giving the appellants a reasonable opportunity of being heard.”
3.Shri Nayar submitted that there is a clear direction in the said order stating “it is also an equally duty of the person adjudicating the matter to put the appellants on notice in respect of the various aspects which they are going to take into reckoning for arriving at the demand.” He said that this direction has not been complied with. In pursuance of the Tribunal order, a show cause notice was issued on 5.11.93 listing out certain documents. With reference to the show cause notice, the party has requested for supply of documents. In the impugned order, the Commissioner observed that the party had requested for perusal of all the relevant documents. They were allowed to peruse all the documents except serial No 25,26,35,41,42,43, & 44 in Annexure ‘B’ of the original show cause notice. These documents could not be produced for perusal as the same were not available. These documents were rightly not received back from CGSC to whom the same were handed over in connection with launching prosecution against Pakshi Mark Photo Beedi Co. & others. Efforts to trace out these documents have not succeeded.
4. Shri Nayar also drew our attention to finding portion of the Collector where he observed that “accordingly I treat the second show cause notice as withdrawn and proceeding with the first show cause notice”. He contended that the Tribunal has given a specific direction to put the appellant on notice. Since the notice has been issued accordingly, it was bounden duty to consider the notice as well as reply given thereof. Since the adjudicating authority has not done as directed the order is just bad in law. He also contended that the above order is liable to be set aside.
5. Shri Thomas George, JDR, appearing for the Revenue submitted that the Commissioner in the impugned order has observed that CEGAT has not prohibited from deciding the case on the basis of decision relied upon on the original notice i.e. purchase and use of Bundle wrappers. He justified the order of the Commissioner is deciding the matter based upon the original show cause notice. However, he submitted that he has not objection to remand the matter to comply with the directions of the Tribunal.
6. We have carefully considered the submissions made by both sides and perused the impugned order. On going through the order, we find that the adjudicating authority had overcome the directions given ny the Tribunal. In the remand proceedings, in a way he has ignored the directions of the Tribunal. This show cause notice has been issued as directed by the Tribunal and he should have taken note of second notice and reply there of before arriving at the conclusion. Further more ,it was bounden duty of the adjudicating authority to supply relevant documents relied upon in the order. Since the same has not been supplied, the order is bad in law. However, taking into consideration of the facts and circumstances and in the interest of justice, we are remanding the matter to concerned adjudicating authority to decide the issue afresh. With these observations, we are remanding the matter to the concerned adjudicating authority to examine the issue as per the terms of earlier order and to pass an order accordingly on providing sufficient opportunity to the party. Since this matter is being old one, we direct the concerned commissioner to pass an order at the earliest possible time preferably within 60 days from the date of receipt of this order. We make clear that the party also should cooperate with the department in the re-adjudication proceedings.
7. Thus, these 4 appeals are allowed for way of remand.
(pronounced and dictated in open court)