ANIL PANCHMATIA Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE two writ petitions one filed by the partnership firm and the other by the partner of the firm challenge the common order dated 31 -7 -2013 passed by the Joint Secretary (Revision Application) of Ministry of Finance, by which the Revision Applications filed by the petitioners under Section 35EE of the Central Excise Act, 1944, against the order dated 7 -2 -2011 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone -I have been rejected. The proceedings have a chequered history. The petitioner firm M/s. Avni Dresses was a manufacturer of ready -made garments and had filed declaration under Notification No. (N.T.), dated 26 -6 -2001 read with Board's Circular No. -CX, dated 8 -4 -2003 claiming simplified procedure for exempted units in respect of clearance of textile goods for export through merchant exporters. The petitioner firm had claimed necessary exemption under Notification No. , dated 30 -4 -2003 as amended for clearance of goods without payment of duty for the year 2003 -04. Returns were accordingly filed in Annexure 20 for the financial year 2003 -04. All the relevant documents are also claimed to have been filed by the petitioners in support of the exemption claim. On a scrutiny of the documents by the department, it was observed that the transactions between the petitioners and their merchant exporter were within the definition of home clearance and cannot be treated as export clearance in terms of simplified procedure prescribed for exempted units. The department observed that the petitioner had supplied goods to M/s. Ruchit Enterprises, M/s. R.K. International and M/s. Tiptop Impex, which showed that the goods were not exported. A show cause notice dated 29 -12 -2004 was issued for recovery of duty with interest and also penal provisions were invoked. The show cause notice was adjudicated by an order -in -original dated 19 -5 -2005 which confirmed the duty demand of Rs. 4,79,038/ - with interest and imposed penalty of Rs. 1,20,000/ - under Rule 25 on the firm. A personal penalty of Rs. 30,000/ - under Rule 26 of Central Excise Rules was also imposed on the partner of the petitioner -firm. The said order -in -original was challenged by the petitioners in appeals filed before the Commissioner (Appeals). The Commissioner (Appeals) by an order dated 21 -2 -2006 rejected the appeals filed by the petitioners, against which the petitioners had preferred Revisions before the Joint Secretary (RA) which were decided by an order dated 4 -9 -2009. The Revisionary Authority had remanded the matter to the Original Authority to decide the issue afresh by taking into account the order of CESTAT in the case of Merry v. Commissioner of Central Excise, Mumbai -II reported in : 2008 (226) E.L.T. 422 (T -Mum). On remand the Original Authority by an order -in -original dated 10 -5 -2010 dropped the proceedings against the petitioner under the show cause notice dated 28 -12 -2004. Being aggrieved by the said order -in -original dated 10 -5 -2010 the Department had filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) by an order dated 7 -2 -2011 held that the petitioner failed to establish that the goods cleared under the invoices to the various merchant exporters had actually been exported. The Commissioner (Appeals) accordingly allowed the appeals filed by the Department. Being aggrieved by the said order dated 7 -2 -2011 passed by the Commissioner (Appeals), the petitioners preferred Revision Applications before the Joint Secretary to the Government of India under Section 35EE of the Central Excise Act, 1944. By a common order dated 31 -7 -2013 Revisionary Authority has confirmed the order of Commissioner (Appeals), however, observing that that the penal action taken against the petitioners appears to be harsh and therefore, reduced penalty on the petitioner partnership firm viz. M/s. Avni Dresses under Rule 25 of Central Excise Rules, 2002 to Rs. 50,000/ - and the penalty imposed on the partner of the firm was reduced to Rs. 15,000/ -. The order -in -original was accordingly modified to that extent. These orders of the Revisionary Authority are under challenge in these writ petitions.

(2.) WE have heard the learned Counsel appearing for the parties. Learned Counsel appearing on behalf of the petitioner has raised a principal grievance that the impugned order has been passed ex parte. He submitted that in regard to the listing of the matter before the Revisionary Authority on 4 -3 -2013 and 27 -6 -2013 Mr. Panchamatia, partner of M/s. Avni Dresses had not appeared and had requested for an adjournment by addressing two letters dated 21 -2 -2013 and 18 -6 -2013 in which it was pointed out that he being a cancer patient, it would not be possible for him to attend the hearing at New Delhi and that a request on his behalf to grant him hearing in Mumbai be considered. Learned Counsel appearing on behalf of the respondent supports the order on merits and submits that the petition does not call for any interference.

(3.) WE are informed at the bar that the Revisionary Authority holds some sittings in Mumbai and that the next sitting would be held between 10th April, 2014 to 12th April, 2014. In view of these peculiar circumstances, we set aside the impugned order dated 31 -7 -2013 passed by the Revisionary Authority and direct that the petitioner be heard on the Revision Applications filed by them before the Revisionary Authority in the sitting to be held in Mumbai between 10th April, 2014 to 12th April, 2014 and pass appropriate orders on the Revision Applications in accordance with law. It is made clear that if the petitioner fails to attend the hearing before the Revisionary Authority between 10th April, 2014 and 12th April, 2014 in Mumbai, the petitioner shall not be entitled to have any benefit of this order. Writ petitions stand disposed of in the aforesaid terms. No order as to costs.