M/S. CLASSIC MUSHROOMS LTD. Vs. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS VISAKHAPATNAM-I COMMISSIONERATE VISAKHAPATNAM

JUDGEMENT

(1.) THIS application seeks waiver of pre -deposit and stay of recovery in respect of duty of over Rs. 11/ - lakhs and total penalty of Rs. 5/ - lakhs. There is no representation for the applicant (appellant) despite notice, nor any request of theirs for adjournment. We have noted that, on the last occasion, the party requested for adjournment and accordingly the matter stands listed today. After a perusal of the records and hearing the learned Deputy Commissioner (AR), we are of the view that the appeal itself is fit for summary disposal. Therefore, after dispensing with pre -deposit, we take up the appeal.

(2.) THIS appeal is by a 100% Export -Oriented Unit (EOU) and the same is directed against demand of duty of Excise on certain capital goods which were claimed to have been transferred to another 100% EOU but found not to have been accounted for by the appellant. The demand of duty is in respect of the capital goods mentioned in Annexures - II and III to the show -cause notice. In the present appeal, it has been asserted that many of the capital goods mentioned in the two annexures are covered by re -warehousing certificates issued by the proper officer having jurisdiction over the recipient unit M/s. Agro Dutch Industries Ltd. In respect of some other goods, the appellant has claimed that these goods were used, over a period of time, in the manufacture of larger equipments and that such larger equipments were re -warehoused in the recipient unit. However, there is no specific reference to any re -warehousing certificate covering such goods, in the memo of appeal. After a perusal of all the grounds of the appeal, we have examined the findings recorded by the learned Commissioner. His findings are contained in para 13 of the impugned order. In the said para, there is no reference whatsoever to any specific re -warehousing certificates or other documents produced by the appellant. It just contains an account of the manner in which a 100% EOU must maintain the records. Going by the nature of the dispute involved in this case, we are of the view that the adjudicating authority should have endeavored to ascertain whether the assessee could reconcile the capital goods mentioned in Annexures - II and III to the show -cause notice with the re -warehousing certificates and other documents produced by them. This exercise, it appears, was not even attempted to in para 13 of the impugned order. Hence, in our view, the case should be adjudicated afresh by the learned Commissioner in accordance with law after giving the party a reasonable opportunity of adducing evidence (if any) and of being personally heard. Needless to say that all the relevant documents should be carefully examined to find out whether the goods covered by the two annexures to the show -cause notice were duly accounted for. The de novo order should disclose complete scrutiny of the documents as also the reasons for the conclusion.