2018 (8) TMI 884 - AT - Central Excise

Principles of Natural Justice - case of appellant is that impugned order stands passed by Commissioner without affording them a reasonable opportunity to put forth their case - Held that - Though the Commissioner fixed various dates of personal hearing, under intimation to the appellants but as the review petition was pending before the Hon ble High Court the appellants made a request to keep the proceedings in abeyance. The said request was not accepted by the adjudicating authority on the ground that there is no stay order staying the operation of earlier order of the Hon ble Allahabad High Court and as such proceeded to decide the matter, without further providing opportunity to the appellants. As such the fact remains that the impugned order stands passed in the absence of any defence by the advocate - matter remanded to the adjudicating authority to decide the matter afresh after affording a proper opportunity to the appellant to put forth their defence. Imposition of penalties on co-noticees - Held that - Their appeals are also remanded, inasmuch as the appeal of main appellants is being remanded and the learned advocate is allowed to raise all the above issues before the Adjudicating Authority. Appeal allowed by way of remand.

Issues:
1. Confirmation of Cenvat credit demand against the main appellant and imposition of penalties.
2. Appeal against the Order-in-Original dated 25.04.2014 passed by the Commissioner of Central Excise, Noida.
3. Challenge to imposition of penalties on co-noticees under Rule 26(2) and Rule 25.
4. Request for remand of the matters by the learned Advocate and revenue agreeing with the proposition.
5. Passing of the impugned order in absence of defense by the advocate.

Analysis:

1. The appeals were filed against the Order-in-Original dated 25.04.2014, confirming Cenvat credit demand of ?1,09,23,365 against the main appellant, along with interest and imposition of penalties. The main appellant and co-noticees challenged the penalties imposed. The learned Advocate for the main appellant argued that the impugned order was passed without affording a reasonable opportunity to present their case, citing pending review petitions and lack of response to show cause notice. The advocate requested setting aside the impugned order and remanding the matter for re-decision with observance of natural justice principles.

2. The learned Advocate for the co-noticees contended that penalties imposed on them under Rule 26(2) and Rule 25 were not applicable during the relevant period. Referring to legal precedents, it was argued that the penalties should not be imposed based on the law declared by the Hon'ble Punjab & Haryana High Court in specific cases. The revenue agreed with the proposition to remand the matters for further consideration.

3. The Tribunal noted that the impugned order was passed in the absence of any defense by the advocate due to the pending review petition before the Hon'ble High Court. Despite the request to keep the proceedings in abeyance, the adjudicating authority proceeded to decide the matter without providing further opportunity to the appellants. Consequently, the Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for a fresh decision after affording a proper opportunity to the appellant to present their defense.

4. Regarding the imposition of penalties on co-noticees, the Tribunal decided to remand their appeals as well, aligning with the remand of the main appellant's appeal. The learned advocate was permitted to raise all relevant issues before the Adjudicating Authority during the fresh consideration.

5. Emphasizing the age of the matter, the Tribunal directed the Commissioner to complete the denovo proceedings promptly, preferably within three months. Cooperation from the Appellants and avoidance of unnecessary adjournments were encouraged to prevent undue delays. All the appeals were allowed by way of remand, ensuring a fair opportunity for the parties to present their cases effectively.

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