Customs, Excise and Gold Tribunal - Tamil Nadu
Vijayawada Bottling Co. Ltd. vs Commissioner Of Central Excise on 16 June, 2000
Equivalent citations: 2000(71)ECC323
ORDER S.L. Peeran, Member (J)
1. In these applications for condonation of delay, it is contended that the Hon'ble Apex Court had directed the appellants to file an appeal before the CEGAT within thirty days from the date of the order i.e. 19.1.2000 in terms of their Special Leave Appeal (Civil No. 144/145/2000) against the judgment of the High Court of Andhra Pradesh in W.P. No. 23034 & 23999/99 dated 25.11.99. It is contended that they have filed the appeal within the stipulated period and the application is mere formality and they seek for condonation.
2. Heard both sides in the matter.
3. Perused the records. We notice that the contentions made by the appellants are correct and the Hon'ble Apex Court had ordered the appellants to file an appeal within thirty days from the date of the order before CEGAT with a direction that CEGAT may take into consideration the time spent by the petitioner in pursuing the application for condonation of delay. In view of the direction given by the Hon'ble Apex Court and the appeals being filed within the stipulated period, the delay in filing against the Orders-in-Appeal Nos. 41/99(G)(D)CE dated 23.9.99 and 39/99(G)(D)CE dated 7.9.99 passed independently by the Commissioner of Central Excise (Appeals), Hyderabad, is condoned and the appeals are taken up for consideration.
4. In the stay applications, the applicant seeks for stay of operation of the orders impugned and also prayed for taking up of appeals and remand the same for de novo consideration to the Commissioner (Appeals) on the ground that Commissioner (Appeals) had allowed the departmental reference application against the Orders-in-Original and decided the case ex-parte without even hearing the parties. It is contended that notice of hearing was not received by the appellants sent by RPAD, although the Commissioner has noted that the appellants had been directed to appeals on 17.6.99 and 17.8.99. They have filed an affidavit to submit that they have not received the notice of hearing and absolutely there was no intention to evade service or to absent themselves. Therefore, they contended that there was a clear violation of principles of natural justice and hence they seek for stay of operation of the order impugned and pray for taking up of the appeals for decision and to remand the matter to the Commissioner (Appeals) for de novo consideration. It was also pleaded that the issue in show-cause notice with regard to the denial of benefit of Notification No. 175/86-CE on the plea that the appellants were manufacturers of aerated water falling under Chapter sub-heading 2201 and 2202 of the Schedule to CETA, 1985 and were claiming the benefit of concessional rate of duty under the said Notification in respect of their product "Bisleri Club Soda" as brand name owners M/s. Acqua Mineral Pvt. Ltd. were registered as SSI unit. The Assistant Commissioner after due verification had upheld their contention and therefore granted the benefit. However, the department took up the plea in the grounds of appeal that there was no transfer of brand name by the party M/s. Parle Exports to M/s. Acqua Mineral Pvt. Ltd.
5. It was pleaded before us by Sri Kodanda Ram learned advocate for the appellants that this is a fresh ground taken up by the Revenue before the Commissioner (Appeals) and for which there was no notice and they have ought to have been given an opportunity to defend their case which has been denied. Therefore, he seeks for stay of operation of the order impugned and remand the matter for de novo consideration.
6. Heard learned DR Sri S. Kannan, who submits that the Commissioner has given two hearings to the appellants and it is not on record that they have not been served upon. He submits that the order of the Commissioner (Appeals) is a detailed one dealing with all aspects of the matter. He submits that grounds taken up before the Commissioner were amplification of the grounds made out in the show-cause notice and it cannot be said that the grounds which are fresh in nature.
7. Learned counsel opposes the prayer and submits that there was no amplification of grounds taken in show-cause notice but absolutely they are new grounds and hence they cannot be taken.
8. On a careful consideration of these submissions and on a perusal of the orders impugned, it is apparent that the appellants have not been served upon in the matter. The Commissioner has noted that two notices were issued to the appellants and both the Revenue and the appellants were absent during the course of hearing. The Commissioner (Appeals) could have got the notices issued through the Range Office so that the appellants could have given complete opportunity to defend their case. The appellants have filed an affidavit to show that they have not been served upon with notice and this plea is required to be accepted in the circumstances while granting the stay and taking up of appeals and remanding the matter to the Commissioner (Appeals) with a direction that the notice of hearing be served through effective means and hear the appellants in detail on all aspects of the matter including the plea that grounds taken up in the memo of appeal were fresh grounds and the same cannot be taken up and adjudicated upon. Ordered accordingly.
9. Thus, the appeals are allowed by way of remand for de novo consideration.