Custom, Excise & Service Tax Tribunal
M/S. Larsen & Toubro Ltd vs Commissioner Of Central Excise, ... on 3 June, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
SOUTH ZONAL BENCH AT CHENNAI
E/EH/40436/2014 and E/40286/2014
[Arising out of Order-in-Appeal No.23/2013 (M IV) (D), dated 03.12.2013 passed by the Commissioner of Central Excise (Appeals), Chennai]
FOR APPROVAL AND SIGNATURE:
Honble Shri Pradip Kumar Das, Judicial Member :
Honbe Shri R. Periasami, Technical Member :
1. Whether Press Reporters may be allowed to see the Order
for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in
any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s. Larsen & Toubro Ltd.
Appellant
Versus
Commissioner of Central Excise, Chennai-IV
Respondent
Appearance:
Shri N. Viswanathan, Adv. Shri M. Rammohan Rao, DC(AR) For the Appellant For the Respondent CORAM:
Honble Shri Pradip Kumar Das, Judicial Member Honbe Shri Periasami, Technical Member Date of hearing : 03-06-2014 Date of decision : 03-06-2014 FINAL ORDER NO. 40543 / 2014 Per Pradip Kumar Das:
The appellant filed this application for early hearing of the appeal. We take up this appeal hearing with the consent of both the sides. Early hearing application is dismissed as infructuous.
2. After hearing both sides and on perusal of the records, we find that the main contention of the learned Counsel for the appellant is that sufficient opportunity of hearing was not extended to the applicant. The Tribunal by Final Order dated 11.06.2003 remanded this matter to the original authority to decide afresh. Adjudicating authority by Order dated 11.06.2010 finalised the assessment and confirmed the demand of differential duty, which was already paid by the appellant. Revenue filed the appeal before Commissioner (Appeals) against the assessment order. By the impugned order, Commissioner (Appeals) set aside the adjudication order and accepted the appeal filed by the Revenue.
3. On a perusal of the impugned order, we find that the matter was fixed for hearing on 21.10.2013, 28.10.2013 and 28.11.2013. The learned Counsel submits that they have not received the notice for hearing. The Commissioner (Appeals) observed that the appellant (respondent therein) had not filed any cross objection to the appeal filed by the Revenue and, therefore, Departments version remains unrebutted and, therefore, survives. We are unable to accept such a reasoning of the impugned order. Section 35A(3) of Central Excise Act, 1944 provides that the Commissioner (Appeals) shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or appealed against. Sub-Section (4) of Section 35A of the said Act, 1944 provides that the order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision therefor and the reason for the decision. Thus, it is a statutory duty of the Commissioner (Appeals) to give reasons, which cannot be discharged by use of vague words. It requires proper, adequate reasons on the basis of material on record as available.
4. We are not impressed with the submission of the learned Advocate. But, in our view, the impugned order is liable to be set aside on other reasons.
5. In our considered view, while disposing the Departments appeal, the Commissioner (Appeals) should have examined the grounds of appeal and relevant records as available and state the points for determination and give the reasons for the decision. Commissioner (Appeals) allowed the appeal of the department only on the ground that the Respondents had not filed any cross objection, which cannot be a good reason.
5. In view of the above discussion, we set aside the impugned order and the matter is remanded back to Commissioner (Appeals) to decide the matter afresh after giving proper opportunity of hearing to the respondent. Appeal is allowed by way of remand.
(Dictated and pronounced in open court)
(R. PERIASAMI) (PRADIP KUMAR DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
ksr
DRAFT
Remarks
I
II
III
Date of dictation
03.06.2014
Draft Order - Date of typing
03.06.2014
13.08.2014
Fair Order Typing
25.08.2014
Received only on 13.08.2014 from Honble M(J) for fair typing
Date of numbering and date of dispatch
1
2
E/EH/40436/2014 and E/40286/2014