MILLAT FIBERS, SHRI ZAHID HAROON LATIWALA AND SHRI SHOAB MUSA TUMBI Vs. COMMISSIONER OF CENTRAL EXCISE & CUS.

JUDGEMENT

(1.) THESE appeals have been filed by the appellants against OIA No. RS/82 -85/SRT -II/07 dated 26.02.2007 passed by Commissioner (Appeals) Surat II, upholding imposition of penalties imposed upon the appellants under OIO No. 18/JC -Nov/OA/2006 dated 27.03.2006. The issue involved is alleged illicit removal of raw materials by the main appellant M/s. Millat Fibres a 100% EOU, who imported POY/PFY and sold the same in the market and in order to compensate the shortage of such imported raw material appellant showed clearances against the bogus Advance Licenses/Advance Release Orders on paper. Shri S. Suriyanarayanan (Advocate) appearing on behalf of the appellants argued that there was a gross violation of principles of natural justice in as much as the relied upon documents as mentioned in Para 30 of the show cause notice dated 28.02.2004 were never made available to the appellants. He further argued that in Annexure -A to the show cause notice has calculated the duty liability on imports on the basis of Central Excise invoices which is not the correct calculation of duty. It was also his case that redemption fine can not be imposed under Section 125 of the Customs Act, 1962 when the goods are not available for confiscation. That once customs duty is confirmed under Section 28 of the Customs Act, 1962 then common penalty can not be imposed under Section 112 of the Customs Act, 1962 and Rule 209(A) of the Central Excise Rules, 1944 (now Rule 26 of the Central Excise Rules, 2002). He requested that matter may be remanded back to the original adjudicating authority to provide documents to the appellants and then pass an order on the above issues by granting personal hearing to the appellants. He gave oral assurance that appellants will not ask for the refund of the pre -deposit already made.

(2.) SHRI G.P. Thomas (AR) appearing on behalf of the Revenue defended the order passed by the adjudicating authority and the first appellate authority.