2008 (1) TMI 171 - AT - Central Excise

CCE directed special audit in terms of Section 14AA - opportunity of hearing was not given by the Commissioner in the instant case before passing the impugned order - expression complexity being subjective, perception would vary from person to person and opportunity of hearing in the matter would help the authority in coming to the conclusion whether the case is complex or not appeal allowed by way of remand of matter for de novo consideration

Summary

Issues:
1. Special audit directed under Section 14A and Section 14AA of the Central Excise Act without proper application of mind and opportunity of hearing.
2. Interpretation of the expression "having regard to" in Section 14A and Section 14AA.
3. Requirement of opportunity of hearing before passing orders for special audit.

Analysis:
1. The appeals involved challenges to orders directing special audits under Section 14A and Section 14AA of the Central Excise Act without proper application of mind and opportunity of hearing. The appellant contended that the orders were passed routinely without objective consideration of the nature and complexity of the case. The appellant argued that the authority must be satisfied that the value was incorrectly declared before directing a special audit. Citing a Supreme Court decision, the appellant emphasized the importance of objective consideration and the need for an opportunity of hearing before passing such orders.

2. The Tribunal considered the interpretation of the expression "having regard to" in Section 14A and Section 14AA. Referring to a Supreme Court decision related to the Income Tax Act, the Tribunal noted that the use of this expression requires a strict consideration of the factors mentioned in the sections. The Tribunal highlighted that the perception of complexity could vary and an opportunity of hearing would assist the authority in determining whether a case is complex. This analysis underscored the importance of a thorough and objective assessment before directing a special audit.

3. The Department attempted to distinguish the Supreme Court decision cited by the appellant, arguing that the Central Excise Act differs from the Income Tax Act. However, the Tribunal found that the cases were squarely covered by the Supreme Court decision, emphasizing the significance of objective consideration and the necessity of providing an opportunity of hearing before passing orders for special audit. As the Commissioner had not provided an opportunity of hearing before passing the impugned orders, the Tribunal set aside the orders and remitted the matter back for de novo consideration, emphasizing the need for a fair process and opportunity of hearing for the appellant.

In conclusion, the Tribunal allowed the appeals, highlighting the importance of objective consideration, opportunity of hearing, and adherence to procedural fairness in matters involving special audits under the Central Excise Act.