M/S Afloat Textiles Ltd vs Commissioner, Central Excise & Service ...

Appeal No.E/863,864/2007 [Arising out of OIO No.05/DEM/VAPI/2007, dt.21.02.2007, passed by Commissioner of Central Excise & Service Tax, Vapi]

1. M/s Afloat Textiles Ltd., 2. Shri D.R. Kedia. Appellants

Vs

Commissioner, Central Excise & Service Tax, Vapi Respondent

Represented by:

For Appellant: Shri K.I. Vyas, Advocate For Respondent: Shri Raju, Commissioner (A.R), Dr. J. Nagori, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)

Date of Hearing/Decision:21.05.2015

Order No. A/ 10681-10682/2015 dt.21.05.2015

Per: P.K. Das

1. Learned Advocate on behalf of the Appellant submits that the impugned order was passed in gross violation of principles of natural justice. He submits that the personal hearing was fixed for three dates by one hearing notice, which is contrary to the provisions of Section 33A of the Central Excise Act, 1944. He relied upon the decision of the Tribunal in the case of Imtiaz Ahmed Vs Commissioner of Customs, Mangalore  2014 (308) ELT 625 (Tri-Bang). He submits that the Appellant Company was under BIFR and therefore, they could not file the reply to the Show Cause Notice. He further submits that they have debited the entire amount of duty.

2. The learned Authorised Representative for the Revenue submits that the Appellant has not filed the reply to the Show Cause Notice and also not appeared for personal hearing. He strongly contested the submission of the learned Advocate that they have debited the entire amount.

3. On perusal of the impugned order, we find that the Adjudicating authority proceeded on the basis that three opportunities for personal hearing had been granted and no further adjournment shall be granted as per proviso to Section 33A of the Central Excise Act, 1944. We find that three dates of hearing were granted by one notice, which is not proper as per the proviso to Section 33A of the said Act, 1944 as held by the Tribunal in the case of Imtiaz Ahmedad (supra). We have also considered that the Appellant was under BIFR.

4. In view of that, we set aside the impugned order and remand the matter to the Adjudicating Authority to decide afresh, after considering the submissions of the applicant. Needless to say that the Adjudicating Authority shall give proper opportunity of hearing before taking decision. The learned Advocate undertakes to co-operate with the Adjudicating authority in de-novo proceedings.

5. Both the appeals are allowed by way of remand.

(Dictated & Pronounced in Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial)

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