2011 (4) TMI 239 - AT - Customs

Principles of natural justice - power of remand - Since, The show-cause notice, was issued on 7.12.2009 - The first appellate authority passed its order on 29.4.2010. In between, the original authority had passed its order on 7.1.2010 - Obviously, the Order-in-Original was passed in less than a month from the date on which the show-cause notice was received by the party - Apparently, the party was not given reasonable opportunity to reply to the show-cause notice or to be personally heard - These circumstances would call for a remand of the case to the original authority for passing fresh order in accordance with law and the principles of natural justice - Accordingly, set aside the orders of both the authorities and allow this appeal by way of remand with a direction to the original authority to undertake de novo adjudication in accordance with the principles of natural justice.

Summary

Issues:
1. Stay application by the department for the impugned order.
2. Out-of-turn disposal application by the party.
3. Appeal against the Appellate Commissioner's order remanding the case.
4. Power of remand by the Commissioner (Appeals).
5. Validity of reasons for remand by the Appellate Commissioner.
6. Opportunity for the party to reply to the show-cause notice.
7. Directions for de novo adjudication and cooperation with the adjudicating authority.
8. Timely final order by the adjudicating authority.

Analysis:
1. The department filed a stay application for the impugned order, while the party sought out-of-turn disposal. The Early Hearing Application was deemed infructuous as the department's appeal was up for final disposal. The grounds raised in the memorandum of appeal were adopted for the stay application, leading to the appeal being taken up first.

2. The appeal by the department was against the Appellate Commissioner's order remanding the case for de novo adjudication. The main ground raised was the Commissioner (Appeals) lacking the power of remand. Citing a Supreme Court decision, it was argued that the power of remand had been taken away by Parliament. The respondent did not oppose remand to the original authority.

3. The Tribunal noted valid reasons for remand by the Commissioner (Appeals) despite lacking the power. The party had not been given a reasonable opportunity to respond to the show-cause notice or be heard personally. Thus, the case was remanded to the original authority for fresh adjudication in line with natural justice principles.

4. The orders of both authorities were set aside, and the appeal was allowed by way of remand. The original authority was directed to undertake de novo adjudication after providing the noticee with a fair opportunity to respond and be heard. Cooperation with the adjudicating authority was expected, and a final order was to be passed within three months from receipt of the order.

5. The stay application was dismissed, concluding the judgment.