LSM EXPORTS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The present appeal by the assessee against the order dated 17th July, 2012 passed by the Customs, Excise and Service Tax Appellate Tribunal is belated and delayed by 185 days. However, before issuing notice on the application for condonation of delay, we have deemed it appropriate to examine the contentions raised in the appeal on merits. We have heard learned counsel for the appellant, who accepts that primarily disputes and issues raised by the appellant in the appeal are factual. On legal issues, he submits that the appellant was denied right of cross-examination of the departmental officers, who had visited the factory on 4th November, 2003 and, therefore, there was a violation of principles of natural justice. This aspect has been examined by the tribunal in paragraph 16 and it has been highlighted and held that the case of the Revenue was based upon records and not on statement of any investigating officer. The appellant was responsible and should have accounted for the goods imported duty free by them.

(2.) On the date when factory/unit of the appellant was inspected/searched, the physical stock available was short of quantities which ought to have been available. Further, goods actually available in the premises were not recorded in the books. Shortage noticed, was treated as sold in domestic tariff area. Statements of Lalit Mohan dated 17th November, 2003, 19th November, 2003 and 20th November, 2003, accepting the said sales without invoice have been referred to. Documents produced subsequently after four months did not inspire confidence and could not be the basis for accepting the alibi of the appellant. The first show cause notice was issued for duty not paid on manufacture/processed goods cleared, whereas the second show cause notice included the duty payable on the imported goods cleared without processing. The appellant had not been able to produce evidence to show processing. The appellant had set up 100% export oriented unit for export of processed during fruits including spices, pista oil, clove powder and black pepper powder. He had imported almonds in shell, cloves, cardamom, cumin seeds and raisins without duty under bond with the obligation that the processed goods would be exported. The appellant had just one room in their factory address and there was no space and other facility to process imported goods. No accounts were maintained for imported, processed or sold stock.

(3.) The second legal contention raised by the appellant in the present appeal is that the second show cause notice dated 6th December, 2006, enhanced the duty demand. This vitiates the adjudication order as well as the impugned order. We have considered the said contention, but again find that the tribunal has correctly recorded that the enhanced demand was on account of examination of records and new facts coming to light for the Revenue. In these circumstances, the second show cause notice was issued. This notice was in fact akin to rectification or corrigendum to the original show cause notice. Tribunal has also mentioned that the original show cause notice did not take into account the Special Duty of Customs while computing quantum of duty evaded. It has been recorded that the second show cause notice itself was within five years from the disputed period and, thus, the question of limitation did not arise. This is not factually disputed.