M/S. Shanti Electricals vs C.C.E. Jaipur-I

[Arising out of Order-in-Appeal No. 112-CB-ST-JPR-II-2011 dated 16.03.2011 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Shanti Electricals .Appellants

Vs.

C.C.E. Jaipur-I .Respondent

Appearance:

Shri Bipin Garg, Advocate for the Appellant

Shri R.K. Grover, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 02.09.2015

FINAL ORDER NO. 52817/2015-ST(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order imposing penalty under section 77 of the Finance Act 1944.

2. The facts of the case are that the appellant received summons dated 17.11.2008 to appear before the Superintendent CE Range II Jodhpur on 05.01.2009 at 11 am. Consequent to that summon, appellant wrote a letter to the Superintendent concerned on 22.12.2008 asking what details they require but no response was given by the superintendent concerned to the appellant. Unfortunately, on 30.11.2008 appellant received a show cause notice for imposition of penalty under section 77 of the Finance Act 1994. The appellant replied to the show cause notice by giving details of their audited Balance Sheet and other relevant documents vide letter dated 05.05.2009 which were asked in the show cause notice. Thereafter, a notice of hearing was sent to the appellant on 10.09.2009 for appearance on 23.09.2009 or 25.09.2009 or 29.09.2009 and thereafter appellant prayed to the concerned authorities for adjournment of the hearing and to fix a date after 15.10.2009. Despite that an order was passed on 17.06.2010 which is an ex-party order and imposing penalty of Rs. 200 per day from 7th Day of the date of this order till the date of compliance under section 77 of the Finance Act 1994. Aggrieved from the said order appellant preferred an appeal before the Ld. Commissioner (A) who also confirmed the Adjudication order. Aggrieved from the said order appellant is before me.

3. The Ld. Counsel for the appellant submits that the summons did not disclose what information have been asked from the appellant and appellant written to the Department specifically before the date of appearance to provide what details department needs from the appellant. But appellant have not received from the Department. But they received the show cause notice for imposition of penalty under section 77 of the Act and they replied to the show cause notice by providing all the relevant details but instead of considering the same one personal hearing notice was given to the appellant for appearance on three dates. In consequent to that, appellant sought an adjournment. Without considering the request of the appellant for adjournment, the adjudicating authority passed an ex party order which was confirmed by the Ld. Commissioner (A). As the summon issued was deficient, therefore, the penalty on the appellant cannot be imposed.

4. On the other hand, Ld. AR supported the impugned order and submits that summons clearly shows that what details are required from the appellant which appellant failed to respond. Therefore, penalty is rightly imposed on the appellant.

5. Heard the parties. Considered the submission.

6. The bone contention of the Ld. Counsel for the appellant is that summon does not disclose what information they are asking for. For better appreciation of the summon it would be in the interest of justice to extract the same in this order which is reproduced here below:

7. On perusal of the summons it is not clear what enquiry is being conducted and what details are required from the appellant by the concerned superintendent. There is no reference to the charge against the appellant and appellant vide their letter dated 22.12.2008 has specifically asked what details they want but appellant has not asked any specific details. Therefore, I hold that summons issued to the appellant is deficient. Consequently, show cause notice issued to the appellant is also bad in the eyes of law. As show cause notice is deficient, therefore, impugned order and order passed by the first appellate authority are also bad in the eyes of law. Therefore, same are set aside.

8. With these observations appeal is allowed with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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ST/942/2011-ST(SM)