2012(02)LCX0242
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. I]
S/Shri S.S. Kang, Vice-President and Sahab Singh, Member (T)
Ashesh Goradia
Versus
Commissioner of Central Excise, Mumbai-III
Final Order Nos. A/230-238/2012-WZB/C-IKEB) and Stay Order tios. S/525-533/2012-WZB/C-IKEB), dated 29-2-2012 in Application Nos. E/Stay/977-979 and 1141-1146/2011 in Appeal Nos. E/864-866 and 1007-1012/2011
Advocated By -
S/Shri Mayur Shroff, J.C. Patel, Vipin Jain and Vi-
shal Agarwal, Advocates, for the Appellant.
S/Shri P.N. Das, Commissioner (AR) with V.K. Singh, Addl. Commissioner (AR), for the Respondent.
[Order per: S.S. Kang, Vice-President]. -
Heard both sides.
2. Common issue is involved in these applications, therefore are being taken up together. The applicant, Radha Dyg. & Printing Mills, filed application for waiver of pre-deposit of duty of Rs. 16,79,68,422/-, interest and penalty. The other applicants filed applications for waiver of pre-deposit of penalties.
3. The demand against Radha Dyg. & Printing Mills is confirmed on the ground that the applicant wrongly availed Cenvat credit on the strength of invalid input invoices and utilised the same for payment of duty for effecting home clearance and export clearances under rebate during the period April, 2003 to April, 2005.
4. The contention of the applicant Radha Dyg. & Printing Mills and partners is that notice of personal hearing was not received by them, therefore the impugned order is passed ex parte. The learned counsel took us through para 80 of the adjudication order where the adjudicating authority noticed this fact that the notice issued for personal hearing was returned undelivered or with the postal remarks 'left'. The contention of the applicant is that the impugned order is passed ex parte without following the provisions of Section 37C of the Central Excise Act.
5. The learned counsel appearing on behalf of S/Shri Ashesh Goradia, Pravin Goradia and Saryu Goradia submitted that the applicants received the notice of hearing and sought adjournment and the same was not allowed, therefore the impugned order was passed ex parte against these applicants also. All the applicants submitted that if the opportunity of personal hearing is granted, the applicants can explain their case as the applicants have already filed reply to the show cause notice.
6. We find that as noticed by the adjudicating authority, notices of per-sonal hearing issued to the applicants were received back undelivered or with the postal remarks "unserved" or "left". The notice is to be served as per the procedure prescribed under Section 37C of the Act. Section 37C of the Central Excise Act reads as follows :-
"37C Service of decisions, orders, summons, etc.
(1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, -
(a) By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any;
(b) If the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;
(c) If the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is ten dered or delivered by post or a copy thereof is affixed in the manner pro vided in sub-section (1)."
The contention of the applicant during the argument is that as the notices were received back by the adjudicating authority with the postal remarks "left" or "unserved", therefore the adjudicating authority has to follow the procedure laid down under Section 37C of the Act. As per the provisions of Section 37C, the ser- vice can be made by affixing a copy on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice in case the same is not served as the manner prescribed under clause (a) of Section 37C of the Act. In the present case, the above procedure has not been followed.
7. On the last date of hearing, the Revenue was directed to produce evidence regarding the affixing of the copy of notices on the notice board. The Commissioner of Central Excise, Mumbai-III vide letter dated 13-2-2012 informed the AR (Additional Commissioner) that notices were not affixed on the notice board though the same were received back from postal authorities with the remarks "left or unclaimed, returned to sender"..
8. In view of the above, as the notices for hearing were not served as per the provisions of Section 37C of the Central Excise Act, therefore we find merit in the contention of the applicants that an opportunity of hearing is to be granted by the adjudicating authority. In view of this, the impugned order qua the applicants is set aside, after waiving pre-deposit of duty, interest and penalties and the matter is remanded to the adjudicating authority for de novo adjudication and to decide afresh after affording an opportunity of hearing to the appellants. The appellants are directed to appear before the adjudicating authority on 9-4-2012 at 10 am and thereafter the adjudicating authority will fix the date of hearing and decide in accordance with law. The appeals are disposed of by way of remand.
(Dictated in Court)
Equivalent 2013 (295) ELT.0547 (Tri. - Mumbai)