2011 (3) TMI 1219 - AT - Central Excise

Refund application rejected by the department without issuing any show cause notice - contention of the department that mere absence of show cause notice cannot be a justification to set aside the order of the adjudicating authority in view of the fact that the respondent was present in the course of hearing - Held that - Mere presence of the assessee in the course of hearing of the matter does not empower the department to encroach upon the right of the assessee to have a fair opportunity of placing before the adjudicating authority the defence, whichever the assessee wants to place on record - when the law clearly requires issuance of the show cause notice before the conclusion of the adjudication proceedings, it is not open to the department to bypass such legal requirement and find out short-cut method - in favour of assessee.

Summary

Issues:
1. Rejection of refund claim without issuing a show cause notice.
2. Validity of setting aside the order of rejection by the Commissioner (Appeals).
3. Justification for setting aside the order of the adjudicating authority.
4. Presence of the appellant during the hearing in the absence of a show cause notice.
5. Interpretation of fair opportunity for the assessee in defending the case.

Analysis:
1. The original application for refund claim was rejected without issuing a show cause notice to the respondent. The Commissioner (Appeals) set aside the rejection order and remanded the matter for reconsideration after granting an opportunity of being heard to the respondent. However, the original authority again rejected the refund claim without issuing a show cause notice, leading to the matter being taken back to the Commissioner (Appeals) who allowed the appeal based on the absence of a show cause notice.

2. The department challenged the impugned order on the grounds that the appellant was present during the hearing before the adjudicating authority, suggesting that the absence of a show cause notice was not sufficient reason for the Commissioner (Appeals) to set aside the order. The impugned order referenced previous tribunal decisions to support the requirement of a fair opportunity for the assessee to defend the case, emphasizing the importance of a show cause notice in providing the necessary defense preparation.

3. The Tribunal found that the mere presence of the assessee during the hearing did not equate to a fair opportunity to defend the case. It was highlighted that the absence of a show cause notice deprived the assessee of the chance to seek assistance from legal professionals in preparing a defense strategy. The department's argument that the presence of the assessee during the hearing was sufficient was dismissed, emphasizing the legal requirement of issuing a show cause notice before concluding adjudication proceedings.

4. The Tribunal concluded that the impugned order did not commit any illegality by setting aside the order of rejection based on the absence of a show cause notice. The appeal was deemed to fail, and the Cross-Objection was also disposed of accordingly. The decision underscored the importance of adhering to legal requirements, such as issuing show cause notices, to ensure a fair opportunity for the assessee to present their defense effectively.