2008 (1) TMI 339 - AT - Central Excise

Ex-parte order passed by commissioner without providing effective hearing only notice for personal hearing was issued - that it will be fit and appropriate to direct the Commissioner to pass fresh order after giving opportunity of hearing to the appellants, on merits - deposit made by the appellant, and other concerned parties will be kept on hold subject to final order of the Commissioner.

Summary

Issues:
1. Waiver of pre-deposit in appeals arising from a common order-in-original.
2. Adequacy of hearing provided to the appellants by the Commissioner.
3. Possibility of refund claims if the impugned orders are set aside.
4. Determination of payment conditions for appellants for fresh hearing by the Commissioner.
5. Clarification on the scope of setting aside the impugned order and entitlement to fresh adjudication.

Issue 1: Waiver of Pre-Deposit
The appeals were taken up for hearing primarily on the point of waiver of pre-deposit. The learned counsel for the appellants argued that the appellants were not effectively heard by the Commissioner, suggesting a remand for fresh adjudication after providing a proper opportunity for hearing on merits. The Departmental Representative contended that the appellants did not cooperate with the adjudicating authority by failing to appear on scheduled dates. After considering the submissions, the Tribunal directed the Commissioner to pass a fresh order after giving the appellants an opportunity for a proper hearing on merits.

Issue 2: Adequacy of Hearing
The Tribunal acknowledged the arguments made by the appellants regarding the lack of effective hearing provided by the Commissioner. It was noted that although notices for personal hearing were issued, the final order was passed ex parte, raising concerns about the fairness of the process. The Tribunal found merit in the appellants' claim and decided that a fresh order with a proper hearing opportunity was necessary for a just adjudication.

Issue 3: Refund Claims
A question arose regarding the possibility of refund claims if the impugned orders were set aside and the matter remanded to the Commissioner. It was observed that while some appellants had not made any payments towards the demands, others had paid the entire amount. The Tribunal decided that certain appellants should pay specific amounts as a condition for a fresh hearing, while others were exempted from such requirements based on the circumstances of their cases.

Issue 4: Payment Conditions
The Tribunal determined that one appellant should pay a substantial sum as a penalty for a fresh hearing by the Commissioner, while other appellants were not required to make any payments for the same purpose. Specific instructions were given for the payment deadline and consequences of non-compliance. The Tribunal emphasized the need for cooperation from the appellants during the fresh hearing process.

Issue 5: Scope of Setting Aside the Impugned Order
The Tribunal clarified that the impugned orders of the Commissioner were set aside only for the appellants involved in the appeals before the Tribunal. It was specified that only those appellants were entitled to a fresh adjudication. Additionally, the Tribunal clarified that any deposits made by the appellants and other concerned parties would be held pending the final order of the Commissioner after the fresh adjudication process.

In conclusion, the Tribunal set aside the impugned orders of the Commissioner and disposed of the appeals with detailed conditions for a fair and comprehensive fresh adjudication process, ensuring proper hearing opportunities and payment requirements based on individual circumstances.