2024 (1) TMI 715 - AT - Central Excise

Violation of principles of natural justice - vital facts not examined - recovery of dues - HELD THAT - The Learned Commissioner (Appeal) merely by reproducing in section 11 held that there is no infirmity in the notice of demand to defaulter dated 14.06.2004 . However as per the submission made by the Learned Counsel, we find that the Learned Commissioner appeal has not examined the vital facts of the case that during the period, for which the demand was confirmed, which is sought to be recovered from the present appellant what was the status of the appellant. As submitted by appellant, the present appellant had resigned as a partner from the partnership firm in August, 1993 and the period involved in the present demand is April, 1994 to August 1994. On this basis it prima facie appears that the period for which the demand was raised, when the appellant was not a partner, how he can be held responsible for the demand. However, the Learned Commissioner has not examined this fact at all, which is very vital to arrive at conclusion whether, any recovery can be made from the present appellant. Matter remanded to the commissioner appeal for reconsidering the appeal before him by following the principle of natural justice - Appeal is allowed by way of remand to the Learned Commissioner for passing a fresh order within a period of two months from the date of this order.

Summary

Issues:
The issues involved in the judgment are the demand of duty against a partnership firm, issuance of recovery notice to the appellant, and the responsibility of the appellant for the demand.

Demand of Duty Against Partnership Firm:
The case involved a confirmed demand of duty against a partnership firm named K.J. Vakharia and Company. The department issued a notice for demand of dues of the partnership firm to the appellant along with other individuals. The appellant filed an appeal before the Commissioner Appeal, who upheld the demand notice issued by the Deputy Commissioner of Central Excise and Customs Division. The appellant challenged this Order-in-Appeal in the present appeal.

Recovery Notice Issued to the Appellant:
The recovery notice dated 14.02.2005 was issued to the appellant against the dues adjudged in Orders-in-Original. The appellant argued that he had retired from the partnership firm before the period for which duty demand was involved. It was highlighted that no statement was recorded from the appellant regarding the dues of the partnership firm, indicating that the dues cannot be recovered from the appellant.

Responsibility of the Appellant for the Demand:
The appellant had resigned as a partner from the partnership firm in August 1993, while the period for which the demand was raised was from April 1994 to August 1994. The appellant contended that since he was not a partner during the period in question, he should not be held responsible for the demand. The Tribunal found that the Commissioner Appeal did not examine this vital fact and set aside the impugned order, remanding the matter for reconsideration to ensure the principles of natural justice are followed.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal by way of remand to the Commissioner for passing a fresh order within two months from the date of the order.