M/S. Celebrity Fashions Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No.2/2010
Ratio decidendi
The rule this decision rests on
The appellate authority, having before it a range report that was relied upon against the assessee, may not act on that material without first disclosing it to the assessee for rebuttal; reliance on undisclosed material in deciding an appeal against a refund sanction is a breach of the principles of natural justice, and an order passed in such circumstances cannot stand and must be set aside and remanded for fresh decision after the material is exposed and the assessee is heard.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.2/2010 (M-IV)(D), dated 19.03.2010 passed by the Commissioner of Central Excise (Appeals), Chennai]
M/s. CELEBRITY FASHIONS LTD. APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-IV RESPONDENT
Appearance:
For the Appellant Shri M. Karthikeyan, Adv.
For the Respondent Ms. Indira Sisupal, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 29-05-2015
FINAL ORDER NO. 40594 / 2015
Learned counsel explains that when refund of Rs.42,00,000/- arose under Rule 5 of Cenvat Credit Rules, 2004 that was rejected by the Adjudicating authority. But against such rejection, the assessee approached Commissioner (Appeals). That authority held that Rs.33,00,000/- is admissible to the assessee which needs verification by the Adjudicating authority. But he disallowed Rs.9,00,000/- by his Order dated 28.06.2007. Against the disallowance of Rs.9,00,000/-, the assessee approached the Tribunal. By Order dated 10.09.2009, its appeal was remanded by Tribunal to Adjudicating authority. Therefore, there is pendency of the matter to consider refund of Rs.9,00,000/- by Adjudicating authority.
2. So far as the remand on refund of Rs.33,00,000/- is concerned, the authority below upon examination allowed refund of Rs.28,00,000/- and sanctioned the same and he denied refund of Rs.5,00,000/-(approximately). Assessee did not dispute on this amount further.
3. When refund of Rs.28,00,000/- was sanctioned by the Adjudicating authority, in consequence of the remand direction, Revenue disputed the same before Commissioner (Appeals). That authority passed an order dated 19.03.2010 allowing Revenues appeal.
4. Learned counsel submits that the Commissioner (Appeals) acted on no basis of law and the range report if any called for was not exposed to the assessee for rebuttal. That has caused violation of natural justice. Therefore, if the matter goes back to learned Commissioner (Appeals), he shall follow the rule of natural justice and expose range report to the assessee for rebuttal so that order shall be passed in accordance with law.
5. Proposition above is considered to be appropriate. Accordingly, it is ordered that the matter shall go back to learned Commissioner (Appeals) who shall within a month of making the application by assessee shall fix the time of hearing and shall expose the range report to assessee for rebuttal. Considering entire facts evidence and law, shall pass appropriate order.
6. In the result, appeal is remanded to Commissioner (Appeals).
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 29-05-2015
DRAFT Remarks
I II III
Date of dictation 27.05.2015
Draft Order - Date of typing 29.05.2015
Fair Order Typing 29.05.2015
Date of number and date of dispatch 01/06/2015
5 E/00394/2010
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