2015 (10) TMI 1922 - HC - Central Excise

Valuation - related person - Short payment of duty - revenue neutral exercise since the recipient is able to avail Cenvat Credit - Held that - present case are similar to the facts of the assessee s own case in 2015 (10) TMI 1845 - GUJARAT HIGH COURT , except for the fact that in the facts of the said case, against the order-in-original, the petitioner had approached the Appellate Commissioner, whereas in the facts of the present case, the petitioner has directly challenged the order-in-original without approaching the Appellate Commissioner. - It is an admitted position that except for the above fact, all facts in both the petitions are identical. Under the circumstances, it is not necessary to reproduce the facts and contentions in detail - Following the same - Decided in favour of assessee.

Summary

Issues involved:
Challenge to order-in-original under Article 226 of the Constitution without approaching the Appellate Commissioner.

Analysis:
The High Court of Gujarat heard a petition challenging an order-in-original dated 30.6.2015 passed by the Deputy Commissioner, Central Excise, Vadodara. The court noted that the facts of the present case were similar to another case where the petitioner had approached the Appellate Commissioner. In that case, the court found a breach of natural justice and allowed the petition by restoring the matter to the adjudicating authority for a decision. Since the facts of both cases were identical except for the approach to the Appellate Commissioner, the court decided to allow the present petition based on the previous judgment.

The court held that the order-in-original and the order-in-appeal in the previous case were in breach of natural justice for not considering the petitioner's main contention regarding the excise duty payment. As a result, the court quashed and set aside the impugned order dated 30.6.2015 and restored the matter to the Deputy Commissioner for a fresh decision. The Deputy Commissioner was directed to consider the petitioner's submission that there was no real short payment of excise duty as M/s. VCL had paid excise duty on the goods at their selling price. The court emphasized that the decision should be made in accordance with the law and after verifying all relevant evidence. The court made the rule absolute with no order as to costs, based on the reasons stated in the previous judgment.