2006 (8) TMI 357 - AT - Central Excise

Summary

Issues:
1. Waiver of pre-deposit of penalty amount due to payment of duty before order-in-original.
2. Commissioner (Appeals) rejecting appeals due to fresh grounds and additional evidence.
3. Interpretation of Section 35A(2) regarding consideration of fresh grounds by Commissioner (Appeals).
4. Failure to provide relied upon documents to the appellants for defense.

Analysis:
1. The appellant's representative requested a waiver of pre-deposit of the penalty amount as the duty had been paid before the order-in-original. The Tribunal granted the waiver since the duty amounts were deposited in full, allowing the appeals to proceed for decision.

2. The lower appellate authority rejected the appeals, considering the grounds mentioned in the appeal memorandum as fresh and additional evidence. The authority highlighted the appellants' failure to respond to the show cause notice and attend personal hearings, treating the submissions as fresh grounds. The Tribunal found this approach erroneous, emphasizing that the grounds in the appeal memorandum should have been considered by the Commissioner (Appeals).

3. Section 35A(2) was referenced by the lower appellate authority, stating that the Commissioner (Appeals) may allow new grounds if satisfied that their omission was not wilful or unreasonable. The Tribunal clarified that this provision does not authorize the Commissioner to disregard the grounds already presented in the appeal. The lower authority misinterpreted the provision by not considering the grounds initially raised by the appellants.

4. The appellant's representative argued that the relied upon documents were not provided to them for preparation and defense. The Commissioner did not address this issue, indicating a failure to consider the appellants' submission. Consequently, the Tribunal decided to remand the matter back to the lower appellate authority for a reevaluation, emphasizing the need to consider all submissions and provide a fair hearing opportunity to the appellants.

In conclusion, the appeals were allowed by way of remand, directing the lower appellate authority to reconsider the case comprehensively, taking into account all submissions and providing a fair hearing opportunity to the appellants.