2001 (9) TMI 109 - HC - Central Excise

Summary

Issues involved:
Challenge to order rejecting request for excise duty declaration based on furnace type; Competency of Deputy Commissioner vs. Commissioner under Section 3A(2) of Central Excise Act; Opportunity to explain jurisdictional Assistant Commissioner's report before passing order.

Analysis:

1. Challenge to order rejecting request for excise duty declaration:
The petitioner, a re-rolling mill manufacturing excisable commodities, challenged the order rejecting their request for excise duty declaration based on the type of furnace used. The petitioner initially declared a pusher type furnace but later claimed to use a batch type furnace. The impugned order was passed without giving the petitioner an opportunity to explain the discrepancy in furnace type. The court held that the petitioner should have been provided with a chance to respond to the jurisdictional Assistant Commissioner's report before the order was issued. By depriving the petitioner of the opportunity to claim lesser tax liability, the impugned order was set aside.

2. Competency of Deputy Commissioner vs. Commissioner under Section 3A(2) of Central Excise Act:
The petitioner's counsel argued that the impugned order was beyond the powers of the Deputy Commissioner (Technical) as Section 3A(2) of the Central Excise Act specifies the Commissioner of Central Excise as the competent authority. The court did not delve into this issue extensively but emphasized that the lack of opportunity for the petitioner to explain the Assistant Commissioner's report was sufficient grounds to set aside the order. The court left the question of the Deputy Commissioner's competency open for future consideration in case an adverse order is passed against the petitioner.

3. Opportunity to explain jurisdictional Assistant Commissioner's report before passing order:
The court highlighted the importance of providing the petitioner with an opportunity to respond to the jurisdictional Assistant Commissioner's report before issuing the impugned order. Failure to furnish the report to the petitioner for explanation violated the petitioner's right to challenge the findings and claim a lesser tax liability. The court directed the respondents to provide the petitioner with a copy of the report, seek an explanation, and then pass appropriate orders based on the response. This procedural lapse was a significant factor in setting aside the impugned order.

In conclusion, the High Court of Judicature at Madras allowed the writ petition, set aside the impugned order, and directed the respondents to provide the petitioner with an opportunity to explain the jurisdictional Assistant Commissioner's report before taking any further action. The judgment emphasized the importance of procedural fairness and the right of the petitioner to challenge findings that impact their tax liability.