2021 (2) TMI 723 - AT - Central Excise

Principles of Natural Justice - appellant submitted that the order passed by the Commissioner (Appeals) has been passed ex-parte for the reason that though the appellant had sought adjournment on January 23, 2018 since it received the letter intimating that hearing would take place on January 23, 2018 itself, but instead of adjourning the matter, the Commissioner (Appeals) decided the appeal on merits - HELD THAT - It transpires from a perusal of the order passed by the Commissioner (Appeals) that initially a letter dated December 13, 2017 was sent to the appellant for appearance on January 8, 2018 but since the appellant did not appear nor any adjournment was sought, another letter dated January 10, 2018 was sent to the appellant by speed post for appearance on January 23, 2018. However, on that date, a letter dated January 23, 2018 was received by the Commissioner (Appeals) from the appellant seeking adjournment for the reason that the aforesaid letter dated January 10, 2018 was received by the appellant only on January 23, 2018. The Commissioner (Appeals) did not grant an adjournment as he did not believe that the letter dated January 10, 2018 that was sent by speed post was received by the appellant on January 23, 2018. The Commissioner (Appeals) did not have any proof of the postal department regarding service of the letter dated January 10, 2018 and only a presumption has been drawn by the Commissioner (Appeals) that since the letter dated January 10, 2018 was sent by speed post, it must have been delivered prior to January 23, 2018. In the absence of the any documentary proof regarding service of the letter January 10, 2018 upon the appellant, the Commissioner (Appeals) was not justified in forming such an opinion and refusing adjournment to the appellant. In all fairness, the Commissioner (Appeals) should have accepted the request made by the appellant for adjourning the hearing to the third or fourth week of February 2018, as was requested by the appellant. The order passed by the Commissioner (Appeals), therefore, deserves to be set aside on this ground alone. The order dated January 31, 2018 passed by the Commissioner (Appeals) is set aside and the Commissioner (Appeals) is directed to decide the appeal afresh after providing opportunity to the appellant, without being influenced by any of the observations made in the earlier order dated January 31, 2018 passed by the Commissioner (Appeals) - Appeal allowed.

Summary

Issues:
Appeal against order dated January 31, 2018 passed by Commissioner (Appeals) setting aside order dated May 30, 2017 passed by Joint Commissioner; Violation of principles of natural justice; Admissibility of Cenvat credit based on documents lacking complete details; Error in reproducing High Court's order by Commissioner (Appeals).

Analysis:
The appeal was filed to challenge the order passed by the Commissioner (Appeals) setting aside the Joint Commissioner's decision and allowing the Revenue's appeal. The appellant argued that the Commissioner (Appeals) passed the order ex-parte without granting adjournment despite a request. However, the Authorized Representative of the Department contended that the appellant had the opportunity but failed to appear, thus waiving the right to complain about natural justice principles.

The Commissioner (Appeals) provided details of the appellant's non-appearance despite multiple notices and opportunities for a hearing. The appellant raised objections regarding the admissibility of Cenvat credit based on incomplete documents, citing the judgment of the Allahabad High Court. The Commissioner (Appeals) decided against the appellant due to incomplete details in the documents, making the Cenvat credit inadmissible under relevant rules.

The Tribunal found fault with the Commissioner (Appeals) for not granting adjournment based on the appellant's request and for presuming the delivery of a letter without concrete proof. The Tribunal highlighted the error made by the Commissioner (Appeals) in reproducing the High Court's order, emphasizing the importance of considering the actual judgment rather than a journal note.

The Tribunal set aside the order of the Commissioner (Appeals) and directed a fresh decision, emphasizing the need for providing the appellant with a fair opportunity for a hearing without influence from the previous order. The appeal was allowed based on the identified errors and the need for a proper reconsideration of the case.

This detailed analysis covers the issues raised in the judgment, including violations of natural justice, admissibility of Cenvat credit, and errors in reproducing the High Court's order, leading to the decision to set aside the Commissioner (Appeals)'s order and allow the appeal for a fresh consideration.