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TMI Blog2008 (1) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... .N. Jha, President.] - 1. These two appeals on behalf of same appellant arising from the two identical orders were taken up together and with the consent of the learned Counsel for the appellant and learned Departmental Representative for the Revenue, heard for final disposal. By the order impugned in Excise Appeal No. 3027 of 2007, the Commissioner of Central Excise, Delhi has directed special audit in terms of Section 14AA while by the order impugned in Excise Appeal No. 3030 of 2007, the Commissioner directed special audit in terms of Section 14A of the said Act. 2. Section 14A of the Act lays down that at any stage of enquiry, investigation or any other proceedings before him, any Central Excise Officer not below the rank of Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity only when it is satisfied having regard to the "nature and complexity of the case" that the value has not been correctly declared or determined by the manufacturer or any person. According to the Counsel, the satisfaction has to be arrived on an objective consideration and the authority can not pass any order mechanically, borrowing the words of the section. As the order is likely to visit the person with civil consequence, it is imperative that he be given an opportunity of hearing. Such an opportunity would in fact facilitate arriving at the conclusion about the case being complex or not. In support of the contention, reliance was placed a decision of the Supreme Court in the case of Rajesh Kumar and Others v. Deputy Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra). While interpreting Section 142A of the Income Tax Act, the Supreme Court observed in clear terms that use of the expression "having regard to" in section 142(2A) is significant. Any opinion in that regard must be formed strictly in terms of the factors enumerated therein and on objective consideration. The 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. 6. It is the admitted position that opportunity of hearing was not given by the Commissioner in the instant case before passing the impugned order. We, accordingly, set aside the order and remit the matter back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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