- (1.) HEARD Shri B.K.S. Raghuvanshi, the learned counsel for the appellant, the learned standing counsel and perused the record. All the aforesaid appeals arise from a common order of the Customs, Excise and Service Tax Appellate Tribunal dated July 29, 2011 passed in Appeal Nos. E/719/to 723/2010 -EX (DB) with E/S/748 -723/2010 -EX Appeal No. 177 of 2012 relates to the demand to the duty and the other four appeals relates to the levy of penalty in consequence of the demand of duty. Since all the appeals arise out of a common order of the Customs, Excise and Service Tax Appellate Tribunal, therefore, the same are being disposed of together.
(2.) THE brief facts of the case are that M/s. Kurele Pan Products Pvt. Ltd., is the manufacturer of gutkha, which is an excisable good. It appears that there was a search on May 30, 2006 at the manufacturing premises wherein 1,000 kgs. of perfume was found short. A show -cause notice dated July 31, 2008 was issued demanding the duty of Rs. 1,35,91,459 on the ground that during the search, quantity of 1,000 kgs. of perfume was found short and by utilising the same, gutkha to the extent of 1,23,000 kgs. was manufactured and clandestinely cleared. The hearing was fixed on August 24, 2009. On September 17, 2009 the respondents wrote a letter to the Department that a copy of the relied upon statements and the documents, mentioned in the show -cause notice be provided for necessary reply. The various statements and the other documents replied upon in the show -cause notice were supplied on October 22, 2009. The respondents in its reply dated November 27, 2009 prayed for cross -examination of the various parties whose statements were sought to be relied upon in the show -cause notice. The hearing was fixed on November 20, 2009. On the said date, the request of the cross -examination was reiterated. However, without accepting the requests of the respondents of the cross -examination of various witnesses, whose statements have been relied upon, the adjudicating authorities proceeded to pass the order dated April 4, 2009 confirming the demand of duty at Rs. 1,35,91,459 along with the interest and also levied the equal amount of penalty. Further a sum of Rs. 25 lakhs have been imposed on Shri K.M. Shukla, director of the company and a penalty of Rs. 15 lakhs each has been imposed on M/s. Gahoi Chemicals Pvt. Ltd. and M/s. Kumar Enterprises. Against the impugned order, the respondents filed the appeals before the Tribunal. The Tribunal by the impugned order dated July 29, 2011 set aside the adjudication order and remanded the matter for de novo consideration to the authority directing to give fair opportunity to the respondent to cross -examine the witnesses. The learned counsel for the appellants submitted that the respondent has asked the opportunity of cross -examination, a day before the last date for personal hearing. On other dates, the only request was made for the adjournment. Therefore, the request for cross -examination of the witnesses was not justified and the assessing authority has rightly rejected the request and proceeded to pass the order. The Tribunal was not justified in setting aside the said order.
(3.) WE do not find substance in the arguments of the learned counsel for the appellants. From the record, it reveals that the first date was fixed on August 24, 2009. On September 17, 2009 the respondent wrote a letter to the Department asking for the copy of the relied upon documents and the statements of the witnesses. The next date fixed was September 24, 2009. On October 22, 2009 the copies of the statements and the relied upon documents have been provided to the respondent. On the receipt of such documents, the respondent filed the reply on November 17, 2009 and requested for cross -examination of the witnesses, whose statements were sought to be relied upon in the show -cause notice. The said request was within the reasonable time and cannot be said to be after unreasonable delay. November 20, 2009 was the date fixed. On November 19, 2009 again the request was made for giving the opportunity of cross -examination. On these facts, we are of the view that it cannot be said that there was any lapse on the part of the respondent.;