2015 (10) TMI 1661 - AT - Central Excise

Refund claim - Unutilized CENVAT Credit - Violation of principle of natural justice - Held that - Commissioner (Appeals) while observing that the adjudicating authority had neither passed a speaking order nor issued a show cause notice, then, the adjudicating authority should be directed to pass either a speaking order or to issue show cause notice, if necessary, in the interest of justice. - impugned orders are set-aside and the matter is remanded to the adjudicating authority to pass a speaking order after observing the principles of natural justice - Decided in favour of assessee.

Summary

Issues:
Refund claim of unutilised CENVAT credit under Notification No. 30/2004-CE dated 09.7.2004.
Maintainability of appeal under Section 35 of the Central Excise Act, 1944.
Adjudicating authority's failure to issue a speaking order or show cause notice.

Analysis:
The appellant filed a refund claim of unutilised CENVAT credit under Notification No. 30/2004-CE dated 09.7.2004. The Adjudicating authority returned the claim citing the absence of a provision in the Cenvat Credit Rules, 2004 for such a refund. The Commissioner (Appeals) dismissed the appeal, noting it as not maintainable under Section 35 of the Central Excise Act, 1944. Additionally, the Assistant Commissioner failed to issue a show cause notice or a speaking order, merely returning the claim and its enclosures.

Upon hearing both sides and reviewing the records, the judge, Mr. P.K. Das, found that the adjudicating authority had not issued a speaking order or a show cause notice. Consequently, the Commissioner (Appeals) was directed to instruct the adjudicating authority to either issue a speaking order or a show cause notice, if deemed necessary in the interest of justice. The impugned orders were set aside, and the matter was remanded to the adjudicating authority to pass a speaking order while adhering to the principles of natural justice. The adjudicating authority was instructed to provide the appellant with a fair opportunity of hearing before making a decision. The appeal was allowed by way of remand.

In conclusion, the judgment focused on rectifying the procedural lapses by directing the adjudicating authority to follow due process and provide the appellant with a fair opportunity to present their case. The decision emphasized the importance of adhering to the principles of natural justice in administrative proceedings related to refund claims and maintained the appeal's validity for further consideration.