JUDGMENT : The petition questions the propriety of an order of December 22, 2015 by which the petitioners have been held to be manufacturers within the meaning of Section 2(f) of the Central Excise Act, 1944 and found to have evaded excise duty in excess of Rs.11 crore and, as such, liable to a substantial penalty. Despite there being an appellate remedy under Section 35B of the Act, the petitioners claim that the appeal would not be efficacious in view of the statutory pre-deposit that is required to be made and that, in any event, the challenge is primarily on the ground of the breach of the principles of natural justice. 2. The petitioners claim that the order impugned did not take into account the detailed reply furnished by the petitioners and the documents on record. 3. The petitioners are engaged in the business of supply of goods pertaining to electricity transmission. The petitioners claim to do business as traders, whether by causing small quantities of goods to be manufactured on job-work basis or purchasing the goods from suppliers for ultimate sale to end-users. The petitioners say that they have held themselves out as manufacturers to their purchasers, but that would not imply that the petitioners can be deemed to be manufacturers under the said Act for the purpose of making the petitioners liable to pay excise duty on the goods purchased from suppliers and sold to end-users. 4. In particular, the petitioners complain of the department and the concerned officer having picked on four of the petitioners’ suppliers as specimen suppliers and condemning the petitioners as having claimed to have obtained supplies from non-existent parties without referring to the many other suppliers from whom the petitioners claimed to have obtained the supplies. In addition, the petitioners emphasise on the internal report of the department and a report obtained from a private expert to the effect that the petitioners’ perceived manufacturing facility at Bellilious Road, Howrah may not be in operation at all. The petitioners also refer to the sweeping statements in course of the findings rendered in the order impugned without reference to the evidence on record. The petitioners seek to demonstrate that the major findings are contrary to the evidence and without any discussion on the evidence at all. 5. The petitioners also refer to the sweeping statements in course of the findings rendered in the order impugned without reference to the evidence on record. The petitioners seek to demonstrate that the major findings are contrary to the evidence and without any discussion on the evidence at all. 5. Several show-cause notices were issued to the petitioners for the petitioners being perceived to have evaded excise duty for the period February, 2011 to March, 2013 and, thereafter, for the subsequent periods upto the end of financial year 2014-15. The principal allegations and the reasons in support thereof were provided in the show-cause notice pertaining to the period February, 2011 to March, 2013 and the subsequent show-cause notices relied on the parent show-cause notice. 6. In the mother show-cause notice pertaining to the period February, 2011 to March, 2013, four suppliers of the petitioners were picked out for special mention. According to such original show-cause notice dated February 21, 2014, the four entities from whom the petitioners claimed to have purchased divers goods were non-existent. The reason for the department perceiving the four entities to be non-existent was that the Kolkata Municipal Corporation did not have records of such entities, or some of them, having any live trade licence. Though the petitioners attempted to furnish some documents emanating from at least two of such four entities and apparently confirming the transactions between such entities and the petitioners, the concerned commissioner who authored the impugned order did not take such evidence into account for rendering an omnibus finding to the effect that all of the petitioners’ suppliers were non-existent. 7. Indeed, it appears from even the letters addressed by the department to, inter alia, the Kolkata Municipal Corporation, that the department sought particulars regarding many more of the petitioners’ suppliers and the doubtful tag was attached only to four of such suppliers on the ground of their not having valid trade licences at the time that the inquiry was made or was responded to, though the same may have been several years after the relevant transactions had taken place. The other suppliers cited by the petitioners were not taken into consideration by the concerned commissioner, whether as to their existence or as to the credibility of the documents evidencing transactions between such suppliers and the petitioners, in the order impugned. 8. The other suppliers cited by the petitioners were not taken into consideration by the concerned commissioner, whether as to their existence or as to the credibility of the documents evidencing transactions between such suppliers and the petitioners, in the order impugned. 8. As to the manufacturing facility at Bellilious Road, there was an internal report prepared by the department on February 8, 2010. The inventory of the machinery and the stocks of goods at the petitioners’ premises described a forging machine, a part of a Landis machine and a brick furnace with an electric blower. In addition, some rods and wires and the like were also found available at the Bellilious Road facility. In the “Remarks” column in the inventory prepared by the department, the forging machine was found to have been installed, but “old and covered with dust and filth…”; the Landis machine was found to be uninstalled and “old and covered with dust and filth …”; and, the brick furnace carried a similar observation. The raw materials discovered at the premises were described as old and rusted. Clearly, when the department’s team visited the premises to make an inventory of the manufacturing facility or the raw materials or the finished products thereat, some old and rusted raw materials were discovered and some machines were found but such machines did not convey any impression of being in constant or, at least, recent use. 9. The petitioners also relied on a report from a chartered engineer prepared sometime in 2014, according to the department. The report refers to the 1080 sq. ft premises which was found to be poorly lit and without any power back-up facility. The machines were found “covered with dust, filth and cobwebs and it appears that the machines have not been used for a long period.” There was no water connection or such arrangement found at the premises and the Landis machine was found to be partly lying uninstalled in its outer shell without its integral component. There was no chimney found for the furnace at the facility to be used or operated. 10. There was no chimney found for the furnace at the facility to be used or operated. 10. It may not have been necessary to notice either the department’s inventory report or the private chartered engineer’s report in any great detail had it not been for some of the seemingly broad statements made in course of the findings rendered in the impugned order that there was no evidence to establish that the petitioners did not manufacture the electrical or transmission goods that the petitioners sold and supplied to the high-profile purchasers. It appears to be elementary that for a person to be held as a manufacturer under Section 2(f) of the said Act, there must be a manufacturing facility and there must not have been any other source for obtaining the goods that were sold by such perceived manufacturer to any purchaser. In the present case, there were several suppliers who were indicated as such by the petitioners, but only four of them were picked out for a sweeping finding that all of the petitioners’ suppliers were non-existent and, since the petitioners had admittedly sold goods to their purchasers, the petitioners were, in a sense, presumed to have manufactured the goods somewhere. After all, the petitioners claimed that only a small percentage of the goods sold by them had been manufactured on job-work basis. The order impugned does not contradict such position. Thus, for the Commissioner to come to a conclusion that the petitioners were manufacturers, the manufacturing facility had to be identified. 11. There is no reference in the findings rendered in the order impugned to either the inventory report of the department prepared in 2010 or the private report which may have been procured by the petitioners in 2014. When there is material on record to suggest otherwise than what is concluded, the contrary conclusion cannot be arrived at by disregarding the evidence and without discrediting the same. That is a facet of the principle of natural justice. It is not enough for a deaf ear to be turned to a citizen in the mechanical observation of the rules of natural justice. A citizen has to be listened to and not merely heard. For the compliance of such rules, what is said by a citizen has to be considered on its content and not merely registered as a sound. 12. A citizen has to be listened to and not merely heard. For the compliance of such rules, what is said by a citizen has to be considered on its content and not merely registered as a sound. 12. The meaningful hearing of a citizen, in such circumstances, would be the appreciation of the evidence contrary to the suspicion of the department that is laid before the decision-making authority. If such evidence is glossed over without being considered or discredited, it amounts to a breach of the fundamental canons of natural justice. 13. Elsewhere in the order impugned, the Commissioner has referred to job-works undertaken by the petitioners, notwithstanding the value thereof not being of any significant proportion. The Commissioner has accused the petitioners of not producing any records or documents evidencing that the raw material or semi-finished goods were sent for job-work. If only to take an example, paragraph 11.13 of the order impugned may be referred to in such context as the failure to produce the evidence in such regard is recorded therein. 14. It is apparent from the petitioners’ reply to the show-cause notice (specifically, Volume VI, page 664-665 of the present papers) that the petitioners furnished the particulars, not once but twice. Yet again, the Commissioner failed to take into account such evidence as produced or relied upon by the petitioners. It is possible that the evidence may have been utter rubbish, but the Commissioner was obliged to discard or discredit the evidence before proceeding to indict the petitioners. In the Commissioner’s failure to appreciate that such evidence existed, as would appear from the recording at paragraph 11.13 of the order impugned, such order appears to be contrary to the records and, as such, amenable to a challenge on the grounds of breach of natural justice and, even, the abdication of the authority possessed by him. 15. The object of the present exercise is not to dissect the order or tear it to shreds. The Commissioner has otherwise exercised his jurisdiction with consummate aplomb; except that he may have slipped on prejudice. 15. The object of the present exercise is not to dissect the order or tear it to shreds. The Commissioner has otherwise exercised his jurisdiction with consummate aplomb; except that he may have slipped on prejudice. It is only to point out that when a citizen is charged with having done something wrong and some material is provided by such citizen to disabuse the authority of its impression, such evidence has first to be discredited upon a cogent discussion thereon before the original suspicion of wrongdoing is exalted to a final finding. It is such exercise which has been missed in the impugned order. It is for such reason that the decision-making process cannot stand the scrutiny in this extraordinary jurisdiction of overall superintendence. 16. That does not mean that these petitioners are paragons of virtue. It is evident from the material obtained by the department from respectable organisations, including government companies and private sector undertakings, that the petitioners held themselves out of as manufacturers of the electrical and transmission goods that the petitioners sold to such purchasers. This apparent misrepresentation by the petitioners appears to have overwhelmed the Commissioner and the Commissioner may have been under an impression that the petitioners were not required, upon their apparent admission, to be independently found to have manufactured the goods in the light of their representation to third parties. 17. For the reasons indicated hereinabove, it was incumbent on the Commissioner to have otherwise come to a cogent finding that the petitioners could be regarded as manufacturers within the meaning of the said Act and found liable to pay the duty. That the petitioners may have misrepresented to their purchasers as to their status may not have been the only relevant consideration for the Commissioner. 18. However, to the extent it is evident from even the submission of the petitioners as recorded in the order impugned that the petitioners may have represented themselves as manufacturers to their purchasers, it is necessary that the petitioners be put on terms and required to make a deposit for the matter to be considered afresh by the concerned Commissioner. 19. Accordingly, WP No. 392 of 2016 is allowed by setting aside the order impugned dated December 22, 2015, subject to the petitioners depositing a sum of Rs.50 lakh with the department within four weeks from date. 19. Accordingly, WP No. 392 of 2016 is allowed by setting aside the order impugned dated December 22, 2015, subject to the petitioners depositing a sum of Rs.50 lakh with the department within four weeks from date. The order dated December 22, 2015 will remain unconditionally stayed for a period of four weeks from date and, thereafter, stand set aside upon the deposit being made within such time. If the deposit is not made within the time permitted, the stay shall vacate automatically and without further reference to Court and the order dated December 22, 2015 will stand upheld. 20. Upon the deposit being made, which will be without prejudice to the rights of the petitioners in the pending hearing, the concerned Commissioner is requested to decide the matter afresh by passing a reasoned order within a period of eight weeks after affording the petitioners a hearing. 21. If the petitioners succeed in the show-cause notices or the claim of excise duty being set aside after the exercise is completed by the concerned Commissioner, the deposit made pursuant to this order will be refunded without any interest within a fortnight of the Commissioner’s order being made. If there is any excise claim at the end of the exercise completed by the concerned Commissioner, the deposit will get adjusted against such claim and will, to such extent, count towards the statutory pre-deposit for any appeal. 22. The observations hereinabove should not inhibit the Commissioner in undertaking the fresh exercise or be held against the petitioners in course of such exercise. 23. The petitioners have referred to the judgments reported at (2003) 10 SCC 121 ; (2006) 202 ELT 795; and, (1997) 89 ELT 22 which have not been referred to in detail in the light of the fundamental premise on which the present order is founded. Likewise, the department has referred to the parent statute and the Rules of 2002 framed thereunder, the Cenvat Credit Rules, 2004 and certain circulars which have not been found to be of much relevance in the context of the discussion. 24. There will be no order as to costs. 25. Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.