Customs, Excise and Gold Tribunal - Delhi
Black Diamond Beverages Pvt. Ltd. vs Collector Of C. Ex. on 4 August, 1988
Equivalent citations: 1989(41)ELT702(TRI-DEL)
ORDER D.C. Mandal, Member (T)
1. At the beginning of the hearing, Shri Chakraborti, Departmental Representative has drawn our attention to a Misc. application dated 12th July, 1988 filed by the Advocate for the appellants in which two documents as stated therein were filed along with the application for reliance in this case. Shri Chakraborti objected to the introduction of these documents, being new evidence not produced before the lower authorities.
2. In view of this objection raised by the learned Departmental Representative, Shri Mehta, learned Advocate for the appellants, has prayed that the Misc. application along with two documents may be ignored and he will not rely on the same.
3. Arguing for the appellants, Shri Mehta has stated that the subject-matter of these proceedings is classification list No. 1 of 87 dated 5-3-1987 effective from 1-3-1987 which was filed by the appellants after the Central Excise duty on preparations of fruit and vegetables was reduced by the notification. The classification list was modified by the Assistant Collector without issuing any show cause notice to the appellants or without giving any personal hearing. This has resulted in denial of natural justice. This point was raised by the appellants before the Collector of Central Excise (Appeals), but the same has been rejected by the Collector on the ground that the classification approved earlier in the classification list No. 30/86 dated 4-9-1986 was correct.
4. Shri Chakraborti appearing for the respondent, has argued that the classification list approved by the Assistant Collector in classification list No. 30/86 dated 4-9-1986 was not challenged by the appellants by filing an appeal and hence filing of a fresh classification list No. 1/87 dated 5-3-1987 was not warranted. The Assistant Collector was, therefore, correct to modify the second classification list filed on 5-3-1987 without issuing any show cause notice or giving a personal hearing to the appellants. According to him, therefore, the decision of the Collector (Appeals) is correct and the present appeal deserves to be dismissed. When it was pointed out by the Bench that under the provisions of Rule 173B(4) of the Central Excise Rules, an assessee can file a fresh classification list when there is a change in the rate of duty, Shri Chakraborti did not persue his argument on this point.
5. We have considered the arguments of both sides and the records of the case placed before us. In view of the provision of Rule 173B(4), the appellants were at liberty to file a fresh classification list. If the Assistant Collector wanted to modify the classification indicated by the appellants in the classification list, he could do it by issuing a show cause notice to the appellants or by giving a personal hearing. In this case, the Assistant Collector modified the classification list No. 1/87 ex parte without giving an opportunity to the appellants to justify their action. This point was duly raised by them before the Collector (Appeals), but the latter has held that the Assistant Collector was justified in modifying the classification list No. 1/87 without any show cause notice or hearing given to the appellants. We are unable to agree with the Collector (Appeals). Modification of the classification list without giving a hearing or show cause notice to the appellants has resulted in the denial of natural justice. On this ground alone, the impugned order is required to be set aside and the appeal allowed by remand to the Assistant Collector of Central Excise for de novo decision on the classification list No. 1/87 dated 5-3-1987 after giving a notice to the appellants and also opportunity of personal hearing before deciding the issue. We order accordingly.
6. As we have allowed the appeal on the ground of principal of natural justice, we have not considered it necessity to hear the parties on merits of the case.