2017 (1) TMI 1359 - AT - Central Excise

Rebate of Cenvat credit - Rule 5 of Export of Service, 2005 - Time limitation - Held that - We notice that intimation of personal hearing dated 14th February 2012 upon receipt of reply to show cause notice has intimated three alternative dates in the said intimation and that appellant chose the last option but were not heard - It would appear that the original authority decided not only to adopt this restrictive provision in the proceedings before him but also, in a most ingenious manner, paid lip service to the intent of being given sufficient opportunity to be heard by fixing three alternative dates in the same intimation. It is clear that order-in-original was received by appellant only on 10th August 2013 and hence there was no delay in filing the appeal before the first appellate authority - No purpose will be served by remanding the matter back to the first appellate authority when the original authority had not afforded the appellant a proper opportunity to counter the grounds for the proposed rejection of the claim for rebate - Appeal allowed by way of remand.

Summary

Issues:
1. Rejection of rebate claim by the Assistant Commissioner.
2. Dismissal of appeal by Commissioner (Appeals) based on limitation of time.
3. Allegations of improper service of order-in-original.
4. Lack of opportunity for appellant to be heard before the rejection of the claim.
5. Violation of principles of natural justice by the original authority.
6. Remand of the matter back to the original authority for a fresh decision.

Analysis:
1. The appellant, a commission agent, appealed against the rejection of a rebate claim of &8377; 37,47,883 by the Assistant Commissioner. The claim was based on the appellant availing CENVAT credit for tax included in bills raised by sub-agents. The first rebate claim was accepted, but the second claim was proposed for rejection, leading to the appeal.

2. The appeal was dismissed by the Commissioner (Appeals) citing a limitation of time issue. The appellant claimed to have received the order-in-original on 10th August 2013, even though it was dated 8th May 2012. The appellant argued that the order was not served properly, as per section 37C(a) of the Central Excise Act, 1944, which acknowledges registered post with acknowledgment due as the means of service.

3. The Tribunal found that the appellant was not in receipt of the communication of the order-in-original sent by speed post, and it was only based on certification issued by postal authorities that the order was sent on 10th August 2013. The appellant filed the appeal immediately after receiving this communication, indicating no delay in filing the appeal before the first appellate authority.

4. It was established that the appellant was not heard before the claim was rejected by the original authority. Despite appearing for a hearing on 9th March 2012 and requesting a fresh date, no further correspondence was received, and the appellant was informed much later that the matter had been decided upon. The lack of opportunity for the appellant to be heard was a significant issue.

5. The Tribunal noted that the principles of natural justice were violated by the original authority. The intimation of personal hearing provided alternative dates, but the appellant was not heard, and the completion of proceedings without affording sufficient opportunity to the appellant was deemed unseemly. The original authority's decision to not grant adjournments properly was criticized.

6. In conclusion, the Tribunal set aside the impugned order and remanded the matter back to the original authority for a fresh decision after giving the appellant a proper opportunity to be heard. This decision aimed to remedy the lack of opportunity and ensure a fair process for the appellant.