2009 (1) TMI 91 - HC - Central Excise

Appellant contend that though specific attention of the Tribunal was invited at the time of hearing of the Appeal, the Tribunal has failed to deal with the issue regarding lack of opportunity to cross-examine the panch witness, and the issue regarding non-permissibility of levying the penalty under the Provisions of Rule 25 of the Central Excise Rules, 2002 Appellant seeking permission to withdraw the Appeal & move to Tribunal by way of appropriate rectification application is accepted

Summary

Issues:
1. Lack of opportunity to cross-examine panch witness and penalty imposition under Rule 25 of Central Excise Rules, 2002.
2. Non-consideration of submissions regarding personal hearing before the Commissioner of Central Excise (Appeal).
3. Imposition of penalty by the Commissioner (Appeals) without hearing the appellants.
4. Passing of ex-parte order by the Commissioner (Appeals).
5. Imposition of penalty under Rule 25 of Central Excise Rules 2002 despite previous setting aside by the Adjudicating Authority.

Analysis:

1. The Appellant raised concerns about the lack of opportunity to cross-examine the panch witness and the imposition of penalties under Rule 25 of the Central Excise Rules, 2002. The Advocate highlighted these issues during the Appeal but found that the Tribunal did not address these specific points in the impugned order dated 28.02.2008. The Advocate referred to the Memorandum of Appeal submitted to the Tribunal, emphasizing the need for these issues to be properly considered. The Appellant sought to withdraw the Appeal to pursue rectification through the Tribunal, which was granted, resulting in the dismissal of the Appeal.

2. The Appellant's Advocate contended that the Tribunal failed to consider the submissions regarding the lack of a personal hearing before the Commissioner of Central Excise (Appeal). Despite efforts to bring attention to this issue during the Appeal process, the Tribunal did not address this concern in the final order. As a result, the Appellant sought permission to withdraw the Appeal for further rectification through the appropriate legal channels.

3. The Advocate for the Appellant raised objections to the penalty imposed by the Commissioner (Appeals) without affording the Appellants an opportunity to present their case. The Advocate argued that passing an ex-parte order without hearing the Appellants was procedurally incorrect. The Appellant's Advocate aimed to rectify this issue through withdrawal of the Appeal to pursue proper legal remedies before the Tribunal.

4. The Appellant questioned the validity of the ex-parte order passed by the Commissioner (Appeals) without granting them a hearing. This procedural irregularity was highlighted during the Appeal process, prompting the Appellant to seek withdrawal of the Appeal for further legal actions to address this issue appropriately.

5. Another issue raised was the imposition of penalties under Rule 25 of the Central Excise Rules, 2002, despite the Adjudicating Authority previously setting aside the same penalty. The Advocate argued that the Commissioner (Appeals) wrongly imposed the penalty without proper consideration and without allowing the Appellants to present their case. The Appellant intended to withdraw the Appeal to rectify this issue through the Tribunal, emphasizing the need for a fair and just legal process.