Customs, Excise and Gold Tribunal - Mumbai
Zenith Tins Limited vs Commissioner Of Central Excise ... on 16 February, 2001
ORDER
1. Carefully examined the records and heard both sides.
2. Having regard to the totality of the facts and circumstances of the case, I am inclined to dispose of the appeal itself finally. I therefore allow the present stay application and proceed to dispose of the appeal.
3. The jurisdictional Assistant Commissioner in adjudication of a show cause notice issued to the appellant, passed an order disallowing modvat credit to the extend of Rs. 38,982/- to the party and imposing on them a penalty of Rs. 38,000/-. That was an ex-parte order. The party preferred appeal against the Assistant Commissioner's order to the Commissioner (Appeals). They also filed a stay application therein. In both the appeal and the stay application they had given their mailing address as follows:
"Zenith Tins Limited Nath Pai Marg Reay Road, Mumbai - 400033"
Which is different from the mailing address given in the memorandum of the present appeal before the Tribunal. It appears that the lower appellate authority issued notice of hearing in stay application to the party at the above address, but the latter did not receive the notice. The authority therefore passed an ex-parte order in the stay application directing the party to deposit the duty and penalty amounts under Section 35F of the Central Excise Act. This interim order, it appears, was also not received by the party at the above address. Later on, the appellate authority took up the appeal itself for final disposal and passed the impugned order rejecting the appeal for want of pre-deposit of the duty and penalty amounts. The present appeal is against this order of the Commissioner (Appeals).
4. Learned Advocate for the appellants reiterates the grounds of the appeal and prays for remand of the matter to the lower appellate authority for denovo decision on merits. Learned DR does not, in principle, oppose a remand, but he would insist that, as a pre-condition for such hearing by the lower appellate authority, the party be directed to deposit the amounts.
5. I have carefully examined the submissions. I note that the address for communication in the present memorandum of appeal is different from the corresponding address furnished by the appellants in their appeal and stay application filed with the lower appellate authority. There is no satisfactory explanation for this discrepancy. It is, however, obvious that if the address for communication furnished in the present memorandum of appeal was the correct address at the relevant point of time, no notice of hearing or order of stay issued or passed by the Commissioner (Appeals) could have been served on the party at the wrong mailing address furnished by them in the appeal and say application filed with the Commissioner (Appeals). It therefore appears that the fault lies with the party. However, on that count, justice must not be denied to the assessee. Having regard to the obvious fact that the final order was passed by Learned Commissioner (Appeals) without issuing any notice of personal hearing, the order is bad breach of principles of natural justice. Since the impugned order has resulted from non-compliance with the earlier stay order of the Commissioner (Appeals), it will be in the fitness of things if the Commissioner (Appeals) is directed to consider and dispose of the stay application in the first instance on its merits after hearing the party. I therefore set aside the impugned order as well as the stay order of the Commissioner (Appeals) and allow the present by way of remand directing him to dispose of the appellant's stay application on its merits after affording a reasonable opportunity of hearing to the party. He shall then dispose of the appeal on its merits after affording a similar opportunity to the appellants, subject to the results of the stay application. It is made clear that, till the stay application is disposed of by the Commissioner (Appeals) there will be stay of recovery of the amount involved in this appeal. It is further made clear that any notice of hearing issued to the party should be addressed at the address for communication furnished in the present appeal memorandum.