2011 (2) TMI 1061 - AT - Central Excise

Stay petition - appellant requested for personal hearing consequent to such a reply, the adjudicating authority granted personal hearing on 22/01/2009, on which date adjournment was sought by the assessee on the ground that advocate had to come from Chennai - Held that - Adjudicating authority passed order on 31/03/2009 which was issued on 30/04/2009 whereas the personal hearing was granted on 22/01/2009 - adjudicating authority could have accommodated the assessee for one more time and granted him a personal hearing before deciding the matter, order-in-original was passed in violation of principles of natural justice, orders of the lower authorities set aside and remand the matter back to the adjudicating authority to reconsider the case afresh within a period of 3 months from the date of production of this order, appeal and the stay petition are disposed of on the above terms.

Summary

Issues involved: Stay petition for waiver of pre-deposit, confirmation of demand of duty on allegation of clandestine removal, violation of principles of natural justice.

Stay petition for waiver of pre-deposit: The appellant sought waiver of pre-deposit concerning duty, interest, penalty under Section 11AC of Central Excise Act, 1944, and penalty under Rule 26 of Central Excise Rules, 2002. The Tribunal found that the appeal could be disposed of at that stage. After granting waiver of pre-deposit, the appeal was taken up for disposal.

Confirmation of demand of duty on allegation of clandestine removal: The appellant argued that the adjudicating authority did not provide ample opportunity to present the case and passed an ex-parte order. The Commissioner (Appeals) directed pre-deposit of the duty amount, leading to the appeal's dismissal for non-compliance. The Tribunal noted that the adjudicating authority did not grant sufficient time for a personal hearing, leading to a violation of principles of natural justice. The order was set aside, and the matter was remanded back to the adjudicating authority for reconsideration within three months.

Violation of principles of natural justice: The Tribunal found that the adjudicating authority's order was issued without granting adequate opportunity for a personal hearing. Despite the appellant's request for an adjournment due to the advocate's unavailability, the authority proceeded ex-parte. The Tribunal concluded that the order-in-original was passed in violation of principles of natural justice. The lower authorities' orders were set aside, and the matter was remanded for a fresh consideration within a specified timeframe. The appellant undertook to cooperate with the adjudication process and attend the personal hearing when granted.

This comprehensive analysis covers the issues of the stay petition for waiver of pre-deposit, confirmation of demand of duty on allegation of clandestine removal, and the violation of principles of natural justice as addressed in the judgment delivered by the Appellate Tribunal CESTAT, Mumbai.