Customs, Excise and Gold Tribunal - Hyderabad
Itc Bhadrachalam Paper Boards Ltd. vs Cce on 14 September, 2000
Equivalent citations: 2000(93)ECR448(TRI.-HYDERABAD)
ORDER S.L. Peeran, Member (J)
1. The stay and appeal arise from the order of dismissal of appeal passed by the Commissioner (Appeals) for non-deposit of Rs. 45 lakhs as directed by him in Order-in-Stay petition No. 905/99 dated 26.10.1999 in terms of the provisions of Section 35F of the Act. The appellants had claimed Modvat on invoices without having paid the following particulars:
(a) availment of modvat credit on invoices without having duty payment particulars;
(b) availment of modvat credit on
(i) cable trays for support of electrical cables and wires;
(ii) telephone cables;
(iii) PTFE balls and spares for transformers;
(iv) S.S. Mesh
(v) Rails & HDC cones used to support machinery and
(vi) Storage tanks under 57Q as capital goods;
(c) availment of modvat credit on invoices issued by second stage dealers and importers without authentication by the proper officer;
(d) availment of modvat credit on wires & cables, pipes, tubes, bends under Rule 57Q as capital goods; and
(e) availment of modvat credit on machinery received under project imports after 1.3.1997 in excess of 75%.
2. Learned Consultant submits that the appellants had asked for personal hearing to argue the stay application, which has not been granted. Modification application citing large number of judgements covering the issue was also not considered and the final order passed ex-parte. He submits that all such ex-parte orders passed by the Commissioner under Section 35F of the Act were set aside by the Tribunal and also by the Madras High Court in the case of ITC Ltd. as reported in 2000(1) ECL 97 clearly holding that the Commissioner should grant an opportunity of hearing in terms of Section 35A of the Act read with Section 35F of the Act. He submits that in any event of the matter all the items which are referred to above are covered by large number of the Tribunal judgements. He files a list of judgements. He therefore, seeks for remand of the matter to the Commissioner with a direction that the Commissioner shall grant an opportunity of hearing and consider the citations that would be referred by the appellants before him at the time of argument.
3. Heard learned D.R. in the matter.
4. On a careful consideration of these submissions, we notice that the interim order as well as the final order had been passed ex-parte without granting an opportunity of hearing. Therefore, after granting the waiver of pre-deposit and stay, the appeal itself is taken up for consideration. In terms of the Judgment of Madras High Court in the case of ITC ttd. (supra), the Commissioner is bound to give an opportunity of hearing before putting the appellants on terms in the interim stay order. There is a violation of principles of natural justice in this case, which calls for setting aside of the order impugned and remand of the matter to the Commissioner, with a direction that he shall grant an opportunity of hearing to the appellants and take into consideration all the pleas including citations that would be referred to before him with regard to each of the item on which Modvat credit is claimed. Ordered accordingly. The appeal is allowed by way of remand on the above directions.
(Pronounced and dictated in open court).