2010 (5) TMI 288 - HC - Central Excise

Payment of duty - forfeiture of monthly payment facility - Restrictions of payment from PLA and non utilization of Cenvat account. Show cause notice withheld Cenvat credit facility for three months while authority passed order withholding same for six months. Hearing given by one authority whereas, order passed by another. Department having no objection if assessee be heard by Member (Central Excise), CBE&C and appropriate reasoned order passed again following principles of natural justice. Present order not to be treated as precedent. Held that - present order not to be treated as precedent. No opinion expressed on merits.

Summary

Issues:
Challenge to withdrawal of monthly payment of excise duty and restriction on CENVAT credit utilization.
Validity of the order issued by one authority after the hearing conducted by another authority.

Analysis:

Issue 1: Challenge to withdrawal of monthly payment of excise duty and restriction on CENVAT credit utilization
The petition challenged the order withdrawing the facility of monthly payment of excise duty and restricting the utilization of CENVAT credit for a specific period. The impugned order required the petitioner to pay excise duty for each consignment at the time of goods removal and to stop utilizing CENVAT credit during a specified period. The petitioner was allowed to take CENVAT credit during this period for future duty payments. The petitioner contended that the order exceeded the scope of the show cause notice, which initially proposed a three-month restriction on CENVAT credit but was extended to six months in the final order. The petitioner argued that the authority issuing the notice did not pass the final order, raising concerns about the legality of the process. In response, the respondent supported the order, stating that once a hearing is conducted by one authority, it is not necessary for another authority to pass the final order. The respondent also argued that the extension of the restriction period from three to six months did not prejudice the petitioner.

Issue 2: Validity of the order issued by one authority after the hearing conducted by another authority
The court considered the discrepancy between the authority issuing the show cause notice and the authority passing the final order. The court noted that the order extending the restriction period to six months deviated from the initial proposal of three months, raising questions about procedural fairness. After hearing both parties, the court set aside the impugned order and directed that the Member (Central Excise), Government of India, New Delhi, should hear the petitioner and pass a reasoned order within four weeks, ensuring compliance with the principles of natural justice. The court emphasized that this decision was based on the unique circumstances of the case and should not serve as a precedent. The petitioner was instructed to cooperate with the Member (Central Excise) and attend the hearing without seeking adjournments. The court clarified that setting aside the impugned order did not imply a judgment on the case's merits, leaving all questions and arguments open for the determination of the Member (Central Excise). The court disposed of the petition without costs, emphasizing that the ruling was specific to the case at hand.