2012 (2) TMI 440 - AT - Central Excise

Waiver of pre-deposit of duty - Wrong availment of CENVAT Credit - Violation of principle of natural justice - Held that - as the notices for hearing were not served as per the provisions of Section 37C of the Central Excise Act therefore we find merit in the contention of the applicants that an opportunity of hearing is to be granted by the adjudicating authority. In view of this the impugned order qua the applicants is set aside after waiving pre-deposit of duty interest and penalties and the matter is remanded to the adjudicating authority for de novo adjudication and to decide afresh after affording an opportunity of hearing to the appellants. The appellants are directed to appear before the adjudicating authority on 9-4-2012 at 10 am and thereafter the adjudicating authority will fix the date of hearing and decide in accordance with law - Decided in favour of assessee.

Summary

Issues:
1. Waiver of pre-deposit of duty, interest, and penalty.
2. Confirmation of demand due to invalid input invoices.
3. Allegation of passing ex parte order without proper notice.
4. Non-compliance with Section 37C of the Central Excise Act regarding service of notices.
5. Lack of evidence regarding affixing of notices on the notice board.
6. Remand for de novo adjudication and granting an opportunity of hearing.

Analysis:
1. The applicants, including Radha Dyg. & Printing Mills, sought waiver of pre-deposit of duty, interest, and penalties. The demand against Radha Dyg. & Printing Mills was confirmed due to wrongly availing Cenvat credit on invalid input invoices. Other applicants also sought waiver of pre-deposit of penalties.

2. The contention raised was that the impugned order was passed ex parte as the notice of personal hearing was not received. The applicants argued that the notice for personal hearing was returned undelivered or with postal remarks 'left', indicating non-receipt. This raised concerns about the validity of the order passed.

3. The applicants, including Ashesh Goradia, Pravin Goradia, and Saryu Goradia, claimed that they received the notice of hearing but were not granted an adjournment, leading to the order being passed ex parte against them. They emphasized the need for a personal hearing to explain their case, having already filed a reply to the show cause notice.

4. The discussion revolved around the provisions of Section 37C of the Central Excise Act, which outline the procedure for serving decisions, orders, summons, etc. The argument focused on the non-compliance with the prescribed procedure for serving notices, as notices were returned undelivered or marked 'unserved' or 'left'.

5. During the proceedings, the Revenue was directed to provide evidence of affixing the copy of notices on the notice board. However, the Commissioner confirmed that the notices were not affixed on the notice board despite being returned by postal authorities with remarks indicating non-delivery.

6. Consequently, due to the failure to serve notices as per Section 37C, the impugned order was set aside. The matter was remanded to the adjudicating authority for de novo adjudication, emphasizing the importance of granting an opportunity of hearing to the appellants. The appellants were directed to appear before the adjudicating authority for further proceedings in compliance with the law. The appeals were disposed of by way of remand, ensuring procedural fairness and adherence to legal requirements.