Ishwar Chand Jindal vs Cce, Raipur

Customs Excise and Service Tax Appellate Tribunal5 February 2015

CitationAppeal No.E/50799-50802 & 50804-50805//2014-EX(SM)

Ratio decidendi

The rule this decision rests on

The provision governing production of additional evidence before the Commissioner (Appeals), Rule 5 of the Central Excise (Appeals) Rules, 2001, relates only to evidence not produced before the original adjudicating authority. It cannot be extended to bar an appellant from contesting the merits before the Commissioner (Appeals) merely because the appellant failed to file a reply to the show cause notice or attend the personal hearing before the adjudicating authority. Where an appellate authority rejects an appeal on the sole ground that the assessee did not reply to the show cause notice or appear for personal hearing, relying on that rule, such rejection is contrary to the principles of natural justice, and the impugned order is liable to be set aside and the matter remanded to the original adjudicating authority for de novo adjudication.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALWest Block No. 2, R.K. Puram, New Delhi 110 066.SINGLE MEMBER BENCH

No. E/Stay/50923-50926 & 50928-50929/2014 and Appeal No.E/50799-50802 & 50804-50805//2014-EX(SM)

[Arising out of the Order-in-Appeal No. 330,338 339,340335,336/RPR-I/2013 dated 23.10.2013 passed by the Commissioner, Customs & Central Excise, Raipur)

Date of Hearing/Decision: 05.2.2015

For Approval & signature:

Honble Mr.Ashok Jindal, Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes

Ishwar Chand Jindal Appellant

N.R.Sponge Pvt.Ltd.

Vs.

CCE, Raipur Respondent

Appearance

Shri A.K. Mishra, Advocate - for the appellant

Shri Devender Singh, D.R. - for the respondent

CORAM: Honble Mr.Ashok Jindal, Member (Judicial)

FINAL ORDER NO.50313-50318/2015

Per Ashok Jindal :

After dispensing with the condition of pre-deposit of dues, I proceed to decide the appeal itself inasmuch as the Commissioner (Appeals) has rejected the appeal on the ground that as the appellant did not file any reply to the Show Cause Notice nor attended the personal hearing before the original adjudicating authority, he is debarred to contest the merits before Commissioner (Appeals) in view of the provisions of Rule 5 of Central Excise (Appeals) Rules 2001.

2. I find that the said rule relates to production of additional evidence before Commissioner (Appeals) which has not been produced before the original adjudicating authority. The same cannot be extended to the circumstances where the assessee did not file any reply to the Show Cause Notice. Taking recourse to the said rule for rejection of appeal on the said limited ground is against the basic canon of principles of natural justice.

3. Accordingly, I set aside the impugned order and remand the matter to the original adjudicating authority for de novo adjudication. Needless to say that the appellant would file reply to the Show Cause Notice and would cooperate with the adjudicating authority during the process of adjudication. Stay petition as also appeal get disposed of in above manner.

(pronounced in the open court)

(Ashok Jindal)

Member (Judicial)

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