2015 (2) TMI 827 - AT - Central Excise

Restoration of appeal - appeal was dismissed for Non compliance of pre deposit order - Availment of re-credit of excess duty paid - Supplementary invoices - Held that - It is the submission of the appellant that they have not received the information of hearing fixed by the Commissioner (Appeals) and the stay order was passed exparte without hearing them on merits. Since, the appellant has complied the Stay Order of the Tribunal, the matter is remanded back to the adjudicating authority to decide the case on merits. Needless to say, that the Commissioner (Appeals) shall give a reasonable opportunity to the appellants to place their case on merits without insisting for pre-deposit, before taking a decision. I make it clear, that all the issues are kept open for the decision of the Adjudicating authority. The appeal is allowed by way of remand. - Decided in favour of assessee.

Summary

Issues:
1. Non-compliance of stay order by the appellant before the Commissioner (Appeals).
2. Dismissal of the appeal for non-compliance of the stay order.
3. Lack of receipt of intimation notice by the appellant for the hearing.
4. Ex parte passing of the stay order without hearing the appellant on merits.
5. Erroneous payment of excise duty on cancelled supplementary sales invoices.
6. Request for remand of the issue to the Commissioner (Appeals).

Analysis:
1. The case involved the appellant's failure to comply with the stay order issued by the Commissioner (Appeals), leading to the dismissal of the appeal. The appellant argued that they did not receive the intimation notice for the hearing in time, resulting in the ex parte passing of the stay order without hearing them on merits.

2. The appellant contended that they had paid excise duty on supplementary invoices that were later cancelled, and they had taken re-credit suo moto. They believed that since they had paid the duty in excess, there should not have been a requirement for pre-deposit by the Commissioner (Appeals).

3. The Tribunal, after hearing both parties and reviewing the records, found that the dismissal of the appeal was based on non-compliance with the stay order. However, considering the circumstances and the appellant's compliance with the Tribunal's stay order, the matter was remanded back to the adjudicating authority for a decision on merits.

4. The Tribunal directed the adjudicating authority to provide a reasonable opportunity to the appellant to present their case on merits without insisting on pre-deposit. It was emphasized that all issues were to be kept open for the decision of the adjudicating authority, and the appeal was allowed by way of remand.

5. The judgment highlighted the importance of procedural fairness and ensuring that parties have a chance to be heard before decisions are made. The remand of the issue to the Commissioner (Appeals) aimed to allow for a full consideration of the case on its merits without the barrier of non-compliance with the stay order.