Custom, Excise & Service Tax Tribunal
Va Teach Escher Wyss Flovel Ltd vs The Commissioner Of Customs on 28 March, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/1054/07 (Arising out of Order-in-Appeal No.414/2007/MCH/DC/Gr.V-A/07 dated 03/09/2007 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) ====================================================
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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Va Teach Escher Wyss Flovel Ltd., Appellants
Vs.
The Commissioner of Customs,
Mumbai Respondents
Appearance:
Shri.Ashok Dhingra, Advocate for Appellants
Shri.S.N.Prasad, SDR for Respondents
CORAM:
Mr. M.V. Ravindran, Member (Judicial)
Date of Hearing : 28/03/2008
Date of decision : 28/03/2008
O R D E R No:..
Per: Shri M.V.Ravindran, Member (Judicial)
1. This appeal is directed against the order-in-appeal No.414/2007/MCH/DC/Gr.V-A/07 dated 03/09/2007.
2. Considered the submissions made by both sides and perused the records.
3. The issue involved in this case is rejection of refund claim by the adjudicating authority on the ground that the appellant had not produced relevant balance sheets for the concerned period. It is the submission that the relevant balance sheets were submitted to the authority and adjudicating authority has passed an order on 29/03/2007. On perusal of the order of the Commissioner (Appeals) I find that the Commissioner (Appeals) has recorded that the appellant had submitted the balance sheet for the year 2002-2003 with the adjudicating authority, despite this, the Commissioner (Appeals) held as under:-
Evidently, the appellants have been given ample opportunity by the original adjudicating authority to submit the relevant balance sheets from the beginning and specifically from 09/11/2006 onwards. They did not submit the same even on request vide letter dated 08/01/2007 and reminder dated 02/04/07. The same was submitted too late on 02/04/07. The case has already been remanded twice to the adjudicating authority. The last order-in-appeal with specific time frame has also been not adhered to by the appellants whose grievance now is a result of their own laxity.
In the light of the above discussions this authority-in-appeal is of the view that sufficient opportunities have been given to the appellants to make their point. This authority is dis-inclined to resort to the course of remanding the case to the adjudicating authority for the third time. The appeal is therefore rejected.
4. I find that the above findings are incorrect. If it is admitted that the appellant had submitted balance sheets to the adjudicating authority, in the interest of justice, the appellant should have been given one more chance to justify the refund claim. To my mind not giving an opportunity to the appellants to justify the refund claim on the basis of the record, which was submitted, is violation of principles of natural justice.
5. As such, the order is liable to be set aside and I do so. The appeal is allowed by way of remand to the adjudicating authority to reconsider the case afresh, after considering the documents submitted. Since the issue involved is of 2007, the adjudicating authority is directed to take a view at the earliest and not later than four weeks from the date of production of this order. Appeal allowed by way of remand to the adjudicating authority.
(Dictated in Court) (M. V. Ravindran) Member (Judicial) pj 1 3 2