Custom, Excise & Service Tax Tribunal
M/S. Hts Agro Tech Industries vs Commissioner Of Customs, Central ... on 13 September, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE COURT - I Stay & Appeal No: E/Stay/547/2012 in E/836/2012 (Arising out of Order-in-Appeal No.37/2012(H-IV) CE dated 14.3.2012 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals-II), Bangalore.) Date of Hearing: 13.09.2012 Date of decision: 13.09.2012 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes M/s. HTS Agro Tech Industries Appellant Vs. Commissioner of Customs, Central Excise and Service Tax (Appeals-II) Hyderabad. Respondent
Appearance For the appellant : Shri T. Jagpathi Rao, Consultant For the respondent : Shri Ganesh Havannur, Additional Commissioner (AR) CORAM SHRI P. G. Chacko, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) STAY ORDER No._______________________2012 FINAL ORDER No._______________________2012 [Order per: P. G. Chacko]. This application filed by the appellant seeks waiver and stay in respect of the amounts adjudged against the appellant by the original authority. On a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal.
2. In adjudication of a show-cause notice, the original authority had confirmed demand of duty of Rs.31,23,119/- against the assessee by way of denial of CENVAT credit on inputs for the period from June 2009 to November 2010, demanded interest thereon and imposed penalties on the assessee. Aggrieved, the assessee preferred an appeal to the Commissioner (Appeals) and also filed therein an application under Section 35F of the Central Excise Act for waiver of pre-deposit. That application was disposed of by order dated 24.2.2012 whereby the appellant was directed to pre-deposit the entire amount of duty. However, no time limit was fixed by the appellate authority. The appellate authority also fixed 14.3.2012 as the date on final hearing on the appeal filed by the assessee. Eventually, on 14.3.2012, the assessees appeal came to be dismissed for want of compliance with the direction for pre-deposit. The present appeal is directed against the appellate Commissioners order dated 14.3.2012.
2.1 It appears from the impugned order that the appellant requested for modification of the stay order passed by the Commissioner (Appeals) but that application was not entertained.
2.2 It is submitted by the appellant that the notice of personal hearing on the stay application filed before the Commissioner (Appeals) was received by them only on 24.2.2012, a day after the date of personal hearing (23.2.2012). This submission by the learned consultant is supported by a letter dated 27.2.2012 addressed to the appellant by the Branch Postmaster of the delivery post office. This letter is in Telugu and its true English translation is also available on record which indicates that the appellate Commissioners notice of personal hearing was delivered to the appellant only on 24.2.2012. The stay order of the Commissioner (Appeals) was passed on 24.2.2012. This order also makes it clear that personal hearing was fixed for 23.2.2012 for disposal of the stay application but nobody appeared on that date to move the application. Apparently no reasonable opportunity of being personally heard was made available by the learned Commissioner (Appeals) before disposing of their stay application. Moreover, an application for modification of the stay order was filed with the Commissioner (Appeals) by the appellant stating the above circumstances and also claiming prima facie case on merits and praying for waiver of pre-deposit. It appears from the impugned order that the learned Commissioner (Appeals) rejected modification application on the ground that there was no scope for entertaining such application. In the result, the assessees appeal itself came to be dismissed for non-compliance with Section 35F ibid.
3. We have also heard the Additional Commissioner (AR) who reiterates the findings of the lower authorities and submits that the appellant cannot claim prima facie case on merits. However, the crucial fact that the stay order of the Commissioner (Appeals) had been passed without personal hearing has not been contested. On our part, we are also satisfied that natural justice was denied to the assessee by the learned Commissioner (Appeals) in the matter of dealing with their stay application. It is a basic tenet of law that any quasi-judicial authority must follow the principles of natural justice. This principle has been violated in this case. We are of the view that the stay application filed by the assessee before the Commissioner (Appeals) should be reconsidered on merits after giving the appellant a reasonable opportunity of hearing heard. For this purpose, we direct the appellant to appear before the Commissioner (Appeals) at 11.00 a.m. on 8.11.2012 to move their stay application, in which event the stay application shall be disposed of on merits.
3.1 In order to facilitate the above necessary proceedings, we set aside the impugned order and allow this appeal by way of remand with a request to the Commissioner (Appeals) to deal with the assessees stay application on merits in the aforesaid manner.
4. The stay application before us also stands disposed of.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (T) (P. G. CHACKO) Member (J) rv ??
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