Order passed in less than 24 hours of conducting hearing.

PJ/Case law/2013-14/1631

Case:-M/s APEX HOME APPLIANCES Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III

Citation:-2013-TIOL-935-CESTAT-MUM

Brief Facts:- This case is depicts the instance of violation of the principles of natural justice. In this case, the Commissioner passed an order in original in less than 24 hours of conducting hearing. Moreover, submissions made by the appellant were not considered and no finding was given in the order in original.

Appellant contention:-Ld. Advocate for the appellants first grievance is that the principles of natural justice have not been followed by the adjudicating authority and the impugned order is non-speaking order, issued in less than 24 hours of conducting the hearing by the adjudicating authority. Ld. Advocate for the appellant stated that in the said case majority of the documents were given on 30/07/2012. The appellants were called for personal hearing on 22.08.2012 and when they sought additional time the same was denied and final hearing was held on 30.08.2012. According to Ld. Advocate the time given was totally insufficient for submitting the reply. In any case, they attended the hearing on 30.08.2012 and submitted the interim reply and further reply was to be submitted. In fact, further submissions were submitted by M/s Apex Inc. & by Apex Industries to the office of Commissioner on 31.08.2012. M/s Sunbeam Home Appliance has filed written submission on 07.09.2012. However, the order-in-original was passed on 31.08.2012 itself and issued on 07.09.2012 without considering the above submissions. The Ld. Advocate stated that number of issues are involved in the appeals. The first issue is relating to clubbing of units and denying the SSI exemption. The second issue is to use the price list dated 5.09.2009 for computing the demand for the period April, 2006 to December, 2011. Moreover, the price list was not indicating the MRP and many goods are to be assessed on MRP. Third issue is the relating to the confirmation of demand in respect of imported goods. It is alleged that MRP declared for payment of CVD is incorrect. The appellant has also received a demand notice from the customs on the same issue. Demand cannot be both from Customs and Excise. Fourth issue is relating to incorrect demand on 8050 Nos. of LPG Gas stoves imported in CKD condition. Here again, the dispute is regarding the MRP taken by the department is as per the price list dated 05.09.2009. Fifth issue is relating to valuation of LPG Stoves supplied to Tamil Nadu Civil Supplies Corporation Ltd.. According to Ld. Advocate, here the value should have been taken under section 4 and not Section 4A. Yet, another issue is relating to the valuation of the LPG Gas Stove supplied and sold through distributors of M/s Bharat Petroleum Corporation Ltd. Here again the department has taken the RSP printed on retail pack sold through BPCL. Further, Ld. Advocate also stated that there are certain goods which are not manufactured by them at all and are purely relating to trading activities, the value of such goods have been included in computing the demand. Ld. Advocate took us through the order passed by the Commissioner wherein the above mentioned issues have been stated. However, there are no findings on the submission made by the appellants. Ld. Advocate stated that Ld. Commissioner ought to have considered submission and given finding either rejecting or accepting the reasons.

Respondent Contention:-The respondent reiterated the order-in-original and explained some of the issues mentioned therein.

Reasoning of judgment:-Tribunal found that due to clubbing alone the demand would be approximately Rs.88 lakhs. It is observed that when the hearing was held on 30.08.2012 and appellants had asked for sometime, a reasonable time should have been given to them so as to enable them to make further written submissions. We also note from the Order-in-Original that on most of the issues Ld. Commissioner has not given any findings on the appellants' submissions. The Ld. Advocate for the appellant makes an offer of deposit of Rs.50 lakhs within a period of 12 weeks and suggests that the matter can be remanded to the Ld. Commissioner wherein they would explain each and every issue and thereafter Ld. Commissioner can adjudicate the case. Main appellant (M/s Apex Home Appliances) to deposit Rs.50 lakhs in cash within a period of 12 weeks from 22nd April, 2013 and report compliance to the Ld. Commissioner on 12th August, 2013. In the meantime, all the appellants may resubmit their submissions afresh to the Commissioner. Commissioner may thereafter give an opportunity of hearing and decide the matter through a speaking order. It is made clear with the Commissioner would hear the case only after deposit of the above mentioned amount. Further, appellants will not seek adjournments as far as possible and Commissioner would decide the case expeditiously.

Decision:-Appeal allowed on conditions.

Comment:-The substance of this case is that any order in original that is passed in haste and without considering the submissions made by the assessee is in gross violation of the principles of the natural justice and is not sustainable.

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PJ/Case law/2013-14/1631

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