Madhya Pradesh High Court
Shree Baidyanath Ayurved Bhavan Ltd. vs Asstt. C.C.E. on 23 July, 2001
Equivalent citations: 2004(164)ELT153(MP)
JUDGMENT Deepak Mishra, J.
1. By this petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has called in question the order dated 13-5-1991 contained in Annexure P/6 passed by the Asstt. Collector, Central Excise, Bhopal, whereby he has held as under :-
"In other words reasonable opportunity have already been granted and principles of natural justice have already been duly discharged and there are no fresh arguments with the party as admitted by them in their reply dt. 15-4-1990. Hon'ble Justice Vardarajan of Bombay High Court while hearing Writ Petition No. 1497 of 1977 in case of K. Balan's v. UOI, observed that the right of cross-examination is not necessarily a part of reasonable opportunity and depends upon the facts and circumstances of each case. Under the circumstances, I do not find it expedient to accede to the request of the party to grant yet another personal hearing as it would be only ritualistic and in turn delay the proceedings. The necessity to give any personal hearing in the matter otherwise also does not arise because the dispute has already been settled by Hon'ble CEGAT and the undersigned cann't have the temerity to go against the verdict given by Hon'ble CEGAT. Hence in the interest of expeditious disposal of the cases. I proceed to decide the cases on the basis of reply submitted by the party and other available evidences on record and pass this common order.
Party's main contention in reply to notices is that CEGAT have not passed any order or granted stay in appeal filed by the Collector, C. Ex., Indore against Order-in-Appeal, dt. 2-11-1989 and as such the said order is still in operation. Hence they were eligible to clear the impugned goods i.e. 'Dant Manjan Lal' at Nil rate of duty, classified under Chapter sub-heading No. 3003.30. As already stated earlier the Hon'ble CEGAT have set aside the Order-in-Appeal, dt. 2-11-1989 passed by learned Collector (Appeals) on the basis of which the party claims to have removed the goods at nil rate of duty and restored the decision contained in Order-in-Original dt. 6-4-1989 passed by the undersigned classifying the 'Dant Manjan Lal' under chapter sub-heading No. 33.06 liable to pay duty of excise @15% Adv. Since the Hon'ble CEGAT, New Delhi have decided the classifiability of the impugned goods i.e. 'Dant Manjan Lal' under Chapter Heading 33.06, and set aside the Collector (Appeals) Order-in-Appeal, dt. 2-11-1989 the party's grounds and arguments for not paying the duty or for having not paid the duty does not stand the test of law and they are now required to pay the duties as demanded under the aforesaid Show Cause Notices. In view of above there is no necessity to discuss the merit of the case any further and hence, I pass an order as under :
ORDER 'I confirm the Show Cause Notices mentioned above S. Nos. 1 to 4, issued by Superintendent, Central Excise Range, Betul and demand the duty of excise amounting to Rs. 12,84,678.78 under Section 11A of the Central Excises & Salt Act, 1944 from M/s. Baidyanath Ayurved Bhawan (P) Ltd., Sausar which they shall pay forthwith'."
It has also been urged in the writ petition that this order was not communicated to the petitioner as a result of which it could not prefer an appeal.
2. A return has been filed on behalf of the answering respondents contending, inter alia, that the petitioner has been served with the order. However, the Department is not in a position to produce the postal acknowledgement.
3. Keeping both the aspects in view it is thought apposite that the matter should be remanded to the Assistant Commissioner, Central Excise, (chhindwara) to adjudicate the matter afresh. It will be open to the petitioner to contend before the adjudicating authority that the Circular dated 25-9-1991 is retrospective and, therefore, the petitioner is entitled to the benefit of the said circular. The adjudicating authority shall hear the assessee on this issue and such other issues as may be canvassed before him and pass a reasoned order.
4. To cut short delay, it is directed that the petitioner shall appear before the said authority on 16-8-2001 and the authority considering the same shall give another date for hearing. In any case, the entire exercise shall be completed by 15-9-2001.
5. Resultantly the order contained in Annexure P/6 stands quashed.
6. Accordingly the writ petition stands disposed of.