Judgment:
1. Applicants filed these applications for waiver of pre-deposit of duties and penalties.
2. The Commissioner of Central Excise in the impugned order held that M/s. Sardar Metal Industries, M/s. Ram Containers and M/s. Arjun Enterprises are three Units owned by member of one family and all the family members are connived with each other to mis-use the Small Scale Exemption available to Small Scale Units with intend to evade duty. The production of M/s. Ram Containers and M/s. Arjun Enterprises shown as manufactured without aid of power and no Excise duty was paid whereas all the goods were actually manufactured by M/s. Sardar Metal Industries with the aid of power.
4. The contention of the appellants is that the impugned order is passed in violation to the principles of natural justice. After receipt of the show cause notice, the appellants made repeated requests to the Revenue for return of un-relied documents on different dates. The contention of the appellants is that ultimately vide letter dated 22-7-2002, the Superintendent of Central Excise allowed them to inspect the record and to take photocopies of the same. The appellants inspected the records on 12-8-2002. The contention of the appellants is that as they had inspected the record on 12-6-2002, thereafter, no proper and effective opportunity was granted to them before passing the impugned order on 31-8-2002 by the Commissioner of Central Excise.
Their contention is also that in the interim reply, they produced the evidence in support of their claim. All the Units are independent Units. They are independently registered with the Sale Tax Authorities and in respect of their sales, they were independently assessed under the Sale Tax Act. These contentions raised in the reply were not considered by the adjudicating authority while confirming the demand.
5. The contention of the Revenue is that the Commissioner before passing the impugned order granted six opportunities for personal hearing and no one appeared on behalf of the appellants except on one date that is 19-6-2002. Therefore, the proper opportunity was granted to the appellants and the Commissioner after taking into consideration the evidence on record confirmed the demand.
6. The contention of the appellants is that no proper opportunity was granted to them. From the record, we find that the Commissioner granted six opportunities. As per the appellants own submissions, they had inspected the records and obtained photocopies of the documents on 12-8-2002 but on that day none appeared before the Commissioner and the Commissioner of Central Excise again adjourned the case for 29-8-2002.
On that date also no one appeared for the appellants nor any request was made for adjournment. Therefore, we find no force in the contention of the appellants that proper opportunities were not afforded by the Commissioner of Central Excise.
7. Other contention of the appellants is that their interim reply was not considered by the Commissioner while passing the impugned order. We find that the appellants filed a detailed interim reply running into 144 pages which was duly received by the office of the Commissioner on 7-6-2002. In reply to the show cause notice, the appellants pleaded that all the Units are independent Units and also produced evidence in respect of the production capacity of their Units, their Sales Tax assessments etc. to show the independent existence of Units. We find though the Commissioner in the impugned order noticed that the interim reply was filed by the appellants but had not dealt with the contentions raised in the reply in support of the claim of the appellants. The contentions raised in the interim reply requires verification, therefore, in these circumstances after waiving the pre-deposits of duties and penalties, the impugned order is set aside and the matter is remanded to the adjudicating authority for deciding afresh after affording an opportunity of hearing to the appellants.
Both sides are at liberty to produce the evidence in support of their claims. The appeals are disposed of by way of remand.