The failure of adjudicating and appellate authorities to provide relied-upon documents to a party, despite specific requests, violates the principles of natural justice, rendering the resulting order unsustainable and requiring a remand for fresh adjudication.

SATENDRA VIKRAM SINGH

Shri Himanshu Nandlal Jagani, Bhavnagar, Gujarat (Appellant) filed an appeal before this Tribunal against Order-in-Appeal No. BHV-EXCUS-000-APP-031-TO-033-2018-19 dated 23.04.2018 wherein, the learned Commissioner (Appeals) had rejected his appeal and upheld the order of the lower authority.

The entire matter arose from the search conducted at premises of the appellant by the departmental officers on 12.09.2012 wherein, they recovered various incriminating records/ diaries which contained daily transaction carried out by the appellant that included sale of round/ CTD bars purchased from various re-rolling mills including clandestine purchase/ sales/ removal of goods.

1.1 The officers recorded the statements dated 26.09.2012 and 02.04.2013 of the appellant wherein he explained the details noted in resumed documents including details of sellers and buyers of those clandestinely removed goods and the transporters. The officers also recorded the statements of various re-rolling mills and some of the transporters and thereafter, issued show cause notice to the manufacturers of the Iron and Steel Products including the appellant as one of the co-noticee. In the instant case, show cause notice dated 29.02.2016 was issued to M/s. A.I. Industries, Sihor, Dist-Bhavnagar alleging clandestine removal of Iron and Steel Products without payment of Central Excise duty of and proposing recovery of duty of Rs. 4,00,015/- under Proviso to Section 11A along with interest under Section 11A B and penalty under Section 11A C of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002, besides penalty on the present appellant under Rule 26(1) of the Central Excise Rules, 2002. The show cause notice was adjudicated by the Assistant Commissioner, Bhavnagar vide order dated 31.03.2017 wherein, he confirmed duty, interest and imposed equal penalty on M/s A. I. Industries besides a penalty of Rs.1,00,000/- on the appellants. As stated earlier, appeal filed by the appellant against this order was dismissed by the learned Commissioner (Appeals) vide impugned order dated 23.04.2018 against which the present appeal has been filed before us.

2. In the appeal, the appellant took the following grounds:-

• They had made request during the adjudication proceedings for supply of relied upon documents so that they could defend their case but the same was not provided to them. They had also raised this issue in their appeal before the Commissioner (Appeals) who also ignored their request and passed the order in their appeal. Therefore, both the orders are violative of the principles of Natural Justice.

• The appellant is not liable to any penalty as he has neither purchased nor dealt with alleged goods and has merely acted as a broker. He requests that the appeal filed before the learned Commissioner (Appeals) may also be treated as a part of the present appeal before this Tribunal.

• The appellate Commissioner has at para 11.1 held that the details of clandestine transactions recorded in the diary/ notebook seized from the appellant’s premises contained details of goods, truck number, cash payment etc. It was therefore the duty of the investigation officer to find out facts as to which vehicles have been used for clearing the goods clandestinely but no such inquiry has been done either from the vehicle owners or from the drivers/buyers. He therefore prays that the impugned order may be set aside with consequential relief to him.

3. During hearing, learned Counsel submitted that in another similar cases of the appellant, this Tribunal vide Order No. A/11554-11556/2019 dated 21.08.2019 allowed appeals by setting aside the penalty imposed on hi