BHAGWATI METALS Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the order of Central Excise & Gold (Control) Appellate Tribunal (CEGAT) dated 4. 5. 1994 upholding the levy of differential duty and penalty for the alleged clandestine removal of certain goods from the manufacturing unit of the petitioner-assessee.

(2.) AT the out-set we may state that normally a reference or an appeal under the provisions of the Central Excise Act, 1944 (hereinafter referred to as the "act") would have lied to High Court under Section 35g/35h of the Act but since this writ petition under Art. 226 and 227 of the Constitution of India was entertained way back in the year 1994 and has since remained pending here for all these 12 years, we are not inclined to dismiss this writ petition on the ground of such alternative remedy available to the petitioner particularly when this writ petition was admitted after hearing both the parties on 16. 5. 2002. Therefore, we heard the writ petition at length on merits.

(3.) LEARNED counsel for the petitioner, Mr. Maloo, relying on Sec. 14 of the Act which gives power to summon persons to give evidence and produced documents in inquiries under this Act to the Central Excise Authorities, urged that in the case present case, the Adjudicating Authority never bothered to even allow opportunity of cross-examination of Mr. Kapil Gupta, Manager of the assessee firm on the alleged confessional statement of whom the demand in question was raised by the Adjudicating Authority though such confessional statement stood retracted and withdrawn by the said Manager Mr. Kapil Gupta on the earliest available opportunity on 22. 4. 1988 vide Annex. 4. The Adjudicating Authority according to him also failed to exercise his powers under Sec. 14 of the act to summon witnesses or alleged purchasers to whom the goods in question were alleged to have been sold by the assessee firm on the basis of 12 kacha slips and thus in the absence of any such witnesses, the assessee could not be said to have removed the goods and sold them in a clandestine manner to such purchasers. Therefore, the demand in question was illegal and unsustainable.