G.P. Agarwal, Member (J)

1. The instant appeal is directed against the Order-in-Original No. 14/83/T.I.4ii/3ii dated 14.7.83 passed by the Additional Collector of Central Excise Customs, Indore confiscating 8800 H.M. Biris valued Rs. 165/- with an option to redeem the same on payment of a redemption fine of Rs. 125/- and also demanding a duty of Rs. 83,317-90 on the goods removed without payment of Central Excise Duty besides imposing a penalty of Rs. 2,000/-.

2. Factual Backdrops: As a result of the surprise checking of the records and stocks of the appellant's factory - a biri manufacturer -8800 hand made biris in 22 pudas were found in excess of R.G.12A Register. During the course of checking of the factory some private records pertaining to manufacture of H.M. Biris were also recovered. After the scrutiny of private records it was found that the appellant had received 2,35,16,300 biris from different sattedars/persons during the period from 2.11.81 to 12.8.82, but only 16,48,750 H.M. Biris were accounted for in the R.G.12A Register during the said period. In his statement recorded on the spot, the appellant stated that the work of maintenance of the excise records was done by one Shri Hajrat Ibrahim who is illiterate and the excess stock was due to wrong entry in the said register. As a follow-up action a Show Cause Notice calling upon the appellant to show cause as to why a penalty be not imposed upon him under Rule 9(2), 52-A and 226 of Central Excise Rules, 1944 and why the seized goods be not confiscated under Rule 226 and also why duty be not demanded under Rule 9(2) 'Was issued. But inspite of several opportunities the appellant did not file any reply to the Show Cause Notice with the result that the adjudicating authority had to decide the case ex parte on the basis of the evidence available on record. In the ultimate analysis of the evidence available on record, the adjudicating authority concluded that there was an excess stock of 8800 biris and the appellant had removed the hand made biris without cover of Gate Pass and without payment of Central Excise duty as detailed out in the Show Cause Notice. Accordingly he confiscated the excess stock of 8800 biris and also demanded duty as aforesaid besides the penalty of Rs. 2,000/-.

3. We have heard Shri P.N. Kaul, learned counsel for the appellant and Shri Rakesh Bhatia, SDR for the respondent.

4. Shri P.N. Kaul, learned counsel for the appellant at the outset submitted that no opportunity to defend was given to the appellant as provided for in rule 233A of the Central Excise Rules, 1944. He submitted that 10 documents were relied upon by the Adjudicating Authority in the Show Cause Notice issued to the appellant. But copies of the same were not enclosed with the Show Cause Notice with the result the appellant had to make a request for the supply of the same vide their letter dated 18-11-82, while denying the charges levelled in the Show Cause Notice. But they were not supplied. In the result, the appellant asked for the inspection of the documents which was allowed to be inspected at Satna. But on account of the peak season of the biri-patta, the record could not be inspected at Satna as the concerned notice to inspect the documents was of a very short duration. Ultimately, he submitted that afterwards the appellant did not hear from the Adjudicating Authority and filed the provisional reply to the Show Cause Notice on 12-7-83. He vehemently contended that no personal hearing was ever granted to the appellant by the Adjudicating Authority before passing the impugned order. In reply, Shri Rakesh Bhatia, learned SDR submitted that the Department has also filed the Cross Objections and from para 11.18 it is clear that the said reply to the Show Cause Notice was received on 22-7-83 when in fact the case was adjudicated on 14-7-83. He further submitted that for the failure to inspect the documents the appellant himself is to be blamed when, admittedly, he did not dispu