SOM AROMATICS Vs. UNION OF INDIA

JUDGEMENT

(1.) 1. This writ petition has been made by the petitioner challenging the order dated 30th March, 2009 passed by the Commissioner, Customs and Centraf Excise, Noida. The operative portion of such order is quoted hereunder: "(i) I, hereby, confirm the demand of Central Excise duty amounting to Rs. 52, 76, 44, 354.00 [Rs. Fifty Two Crore Seventy Six lakh Forty FourThousand Three Hundred and Fifty Four only] against M/s. Som Aromatics, Noida [Noticee No. 1], short paid by them during the period October 2006 to August 2007, under the proviso to Section 11-A(1) of the Central Excise Act, 1944, as worked outinAnnexure-Aand B (Rs. 48, 87, 02, 237.00 + Rs. 3, 89, 42, 117.00) annexed to the Show Cause Notice. (ii) I hold that interest is chargeable on the above mentioned amount from them under Section 11AB of the said Act. (iii) As M/s. Som Aromatics, Noida (Noticee No. 1), has already paid amount of Rs. 61, 63, 517.00 (Rs.48, 13, 400.00 and Rs. 13, 50, 117.00) vide Ch. No. 655036 dt. 27.8.2007, Ch. No. 655037 dt. 31.8.2007 and Cheque No. 655084 dt. 17.10.2007, 1 hereby appropriate the same towards above said amount of central excise duty. (iv) I, hereby impose penalty of Rs.52, 76, 44, 354.00 [Rs. Fifty Two Crore Seventy Six lakh Forty Four Thousand Three Hundred and Fifty Four only] upon M/s. Som Aromatics, Noida (Noticee No. 1), under Section 11-AC of the said Act read with Rule-25 of the Central Excise Rules, 2002. (v) I, hereby impose penalty of Rs. 3, 00, 00, 000.00 {Rs. Three Crore only] on ShriAtuI Kumar Agarwal, Partner of M/s. Som Aromatics, Noida, (Noticee No. 2), under Rule-26 of the said Rules for his alleged involvement in evasion of duty by Noticee No. 1. (vi) I hereby impose penalty of Rs. 70, 00, 000.00 [Rs. Seventy Lakhs only] on Shri Nissar Hussein, Partner of M/s. Som Aromatics, Noida, [Noticee No. 3], under Rule-26 of the said Rules for his alleged involvement in evasion of duty by Noticee No. 1. (vii) I hereby impose penalty of Rs. 60, 00, 000.00 [Rs. Sixty Lakhs only] on Shri Vinod Kumar Bansal, Manager and authorized signatory of M/s. Som Aromatics, Noida, {Noticee No. 4}, under Rule 26 of the said Rules for his alleged involvement in evasion of duty by Noticee No. 1. The'amount adjudged above shall be paid forthwith by the respective noticees."

(2.) MR. Shashi Nandan, learned Senior Counsel duly assisted by MR. Ashok Kumar, learned Counsel appearing for the petitioner, contended before this Court that an order was passed by a Division Bench of this Court on 25th March, 2009 in Civil Misc. Writ Petition No. 863 of 2009 (Mis. Som Aromatics v. Union of India and another) allowing the petitioner to cross-examine the witnesses. However, certified copy of the order was obtained by the petitioner only on 1 st April, 2009. The petitioner wanted to obtain adjournment even before that day due to non-availability of certified copy of the order particularly when the High Court was pleased to pass the order in presence of the contesting parties, but no adjournment was granted by the concerned Commissioner. After obtaining such certified copy, the same was actually placed before the Commissioner on 2nd April, 2009 but all were in vain. A copy of the ante dated order of the Commissioner dated 30th March, 2009 was communicated to the petitioner on 2nd April, 2009 itself. The petitioner has contended that the Commissioner has consciously passed this order ignoring the order of the High Court which will be reflected from two paragraphs of the order of the Commissioner. Such two paragraphs are quoted hereunder: "16.4 On 26.3.2009, Shri Anurag Mishra, Advocate of Mis. Som Aromatics appeared for P.M. He submitted a written letter and intimated that they have filed a writ petition bearing No. 863(T) of 2009 before Hon'ble High Court, Allahabad against verbal denial by CCE, Noida regarding their request for cross-examination. He intimated that the Hon'ble High Court while disposing the Writ Petition on 25.3.2009, directed CCE Noida to pass an appropriate order on the request of the noticee on the issue of cross-examination. Accordingly, he requested to pass an appropriate order against their above said request made earlier." "18.3.1 find that, Advocate of M/s. Som Aromatics, Noida when appeared for P.H. on 26.3.2009, he submitted a written letter and intimated that they have filed a writ petition bearing No. 863(T) of 2009 before Hon'ble High Court, Allahabad against verbal denial by CCE, Noida regarding their request for cross-examination. He intimated that the Hon'ble High Court while disposing the Writ Petition on 25.3.2009, directed CCE Noida to pass an appropriate order on the request of the noticee on the issue of cross-examination. Accordingly, he requested to pass an appropriate order against their above said request made earlier. I observe that during the course of said personal hearing, advocate of M/s. Som Aromatics were informed to file the copy of said order by 26.3.2009. In this case sufficient opportunity of personal hearings has been given to M/s. Som Aromatics, Noida. Moreover, on the written request of the Noticee company adjournment of personal hearing was allowed more than three times. Thus, it was intimated to them that P.H. fixed for 26.3.2009 is the last one. As per case record, I observe that the M/s. Som Aromatics has failed to submit a copy of Hon'ble High Court order against their W.P., as claimed by them. Thus, I am not inclined to give them more time on this issue and would like to decide the case on the basis of available evidences including above said request made by them."

(3.) SO far as other aspect is concerned, Mr. Kesarwani further relied upon paragraph-12 of a three Judges' Bench judgment of the Supreme Court reported in 1983 E.L.T. 1486 (S.C.) (Kanungo and Co. v. Collector of Customs, Calcutta and others), wherein it has been held as follows: "The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross- examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant."