Custom, Excise & Service Tax Tribunal
M/S. Larsen & Toubro Ltd vs Commissioner Of Central Excise, Umbai ... on 10 December, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
Application No. E/Stay-1625/08
Appeal No. E/1002/08
(Arising out of Order-in-Appeal No. SRK/407/M-II/2008 dt.4/07/2008 passed by the Commissioner of Central Excise (Appeals) Mumbai Zone-II
For approval and signature:
Honble Shri A.K. Srivastava, Member (Technical)
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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 Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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M/s. Larsen & Toubro Ltd.
:
Appellants
VS
Commissioner of Central Excise, umbai -II
Respondents
Appearance
Shri J.H. Motwani, Advocate for Appellant
Shri S.S. Katiyar, Authorized Representative (SDR)
CORAM:
Shri A.K. Srivastava, Member (Technical)
Date of decision 10.12.2008
ORDER NO.
Per : Shri A.K. Srivastava, Member (Technical)
This stay application alongwith the appeal has been filed by M/s. Larsen & Toubro Ltd., Mumbai against the Order-in-Appeal dated 4.7.2008 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone II by which he has dismissed their appeal on the ground of time bar.
2. After hearing both sides for sometime on the stay petition for waiver of the pre-deposit of the equivalent penalty of Rs.2,96,640/-, which the appellants are required to pay in terms of the Order-in-Original dated 20.7.2007 passed by the Assistant Commissioner in view of the dismissal of their appeal by the Commissioner (Appeals) as time-barred, I feel that the appeal itself can be disposed on the ground of violation of the principle of natural justice. Hence, the pre-deposit of the penalty is waived and the appeal itself is taken up for disposal.
3. I find that the personal hearing in this case was fixed on 21.02.2008, which was adjourned to 14.03.08. The appellants, vide their letter dated 10.03.08, informed the Commissioner (Appeals) that the person handling this matter has not resumed duty yet and is expected to resume only by the 2nd week of April, 2008. In this circumstances, they requested for fixing the date of personal hearing in the 3rd week of April 2008. However, the Commissioner (Appeals) instead fixed the personal hearing on 04.04.08 and not in the 3rd week of April, 2008 as requested by the appellants. The appellants did not appear for hearing on 04.04.08. The Commissioner, on the basis of evidence on record, felt that the reason given does not justify the delay, rejected the application for condonation of delay and consequently dismissed the appeal as time-barred.
4. I feel that the Commissioner ought to have given another date of personal hearing in this case with sufficient time. Even the law provides three adjournments during the proceeding. There is clear cut violation of the principles of natural justice. I, therefore, set aside the impugned order passed by the Commissioner (Appeals) and remand the case back to him to hear the appellants on their application for condonation of delay on merits and thereafter pass appropriate orders in accordance with law.
5. The appeal is allowed by way of remand in above terms. The stay petition also stands disposed of.
(Pronounced in court) A.K. Srivastava Member (Technical) Sm 3