Custom, Excise & Service Tax Tribunal
M/S Veda Research Labs Pvt. Ltd vs Cce, Indore on 14 February, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 14.2.2013
For Approval & signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri Sahab Singh, Member (Technical)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would 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 Department Authorities?
Excise Stay No. 1728-1729 of 2012 and Excise Appeal No. 1360-1361 of 2012
(Arising out of Order-in-Original No. 32-33/Commissioner/2011-12 dated 3.2.2012 passed by the Commissioner of Central Excise, Noida)
M/s Veda Research Labs Pvt. Ltd. Appellants
Vs.
CCE, Indore Respondent
Excise Stay No. 3150 of 2012 and Excise Appeal No. 2418 of 2012 (Arising out of Order-in-Original No. 34-39/Commissioner/2011-12 dated 27.2.2012 passed by the Commissioner of Central Excise & Service Tax, Noida) Shri S.K. Handa Appellant Vs. CCE, Noida Respondent Excise Stay No. 1738-1743 of 2012 and Excise Appeal No. 1368-1373 of 2012 (Arising out of Order-in-Original No. 34-39/Commissioner/2011-12 dated 27.2.2012 passed by the Commissioner of Central Excise & Service Tax, Noida) Bio Veda Research Lab Pvt. Ltd. Appellants Vs. CCE, Noida Respondent Appearance Appeared for Appellant : Shri K.K. Anand, Advocate Appeared for Respondent : Mrs. Ranjana Jha, Jt. CDR CORAM: HONBLE MS. ARCHANA WADHWA, MEMBER (JUDICIAL) HONBLE SHRI SAHAB SINGH, MEMBER (TECHNICAL) Final Order No. 55577-55585/2013 Per Archana Wadhwa :
After dispensing with the condition of pre-deposit, we proceed to decide the appeal itself inasmuch as we feel that the impugned order stands passed in violation of the principles of natural justice.
2. It is seen that the earlier number of personal hearing dates were fixed by the adjudicating authority which were duly attended by the appellants. However, the adjudicating authority was subsequently changed and a new Commissioner joined on 21.10.2011. Accordingly he fixed a date of hearing on 15.12.2011, as per the comments of the Commissioner produced under the cover of letter dated 10.9.2012. He has also placed on record the evidence that showing that the notice for the said date of hearing were served to the appellant personally through the range office as is evident from the signature of their authorised representative Shri Pankaj Sharma. As the appellant did not appear on the said date, the matter was decided without hearing the appellant in person.
3. The contention of the ld. Jt. CDR is that the earlier Commissioner has given more than three hearings to the appellant and as such has satisfied the provisions of Section 33 of Central Excise Act. She also submits that though the Commissioners report says that only one date of hearing was given on 15.12.2011 but the impugned order reflects that prior to said date, another hearing was fixed on 23.11.2011 and ld. Advocate appearing for the appellant also agrees to the same. As such, the Commissioner was justified in proceeding ahead when the matter hearing the appellant in person.
4. Ld. Advocate appearing for the appellant submits that they sought adjournment on the date of last hearing fixed on 23.11.2011 and the matter was subsequently fixed on 15.12.2011, as recorded in the order. However, the said notice was not served upon by them. In any case Commissioner should have afforded, at least third opportunity of hearing, even in terms of Section 33A of the Act. As such he submits that there is a failure of natural justice on the part of the adjudicating authority and the matters should be remanded.
5. After appreciating the submissions made by both the sides, we find that the previous personal hearings were given by the earlier Commissioner, who was transferred before he could pass the orders. As such, no reference can be made to the earlier opportunities granted by the Commissioner. It is well settled law that the matters needs to be heard by the person, who adjudicates and not by his predecessor.
As far as the present adjudicating officer is concerned, we find that one herring fixed on 23.11.2011 was adjourned and thereafter the matter was fixed on 15.12.2011. without going into the dispute as to whether the said notice was served upon the applicant or not, we are of the view that the principles of natural justice required commissioner to afford another opportunity of hearing to the appellant, especially when he has passed the impugned order after a period of two months from the last date of hearing so fixed by him. As such, we are of the view that there is admittedly violation of natural justice, requiring the impugned order to be set aside. We order accordingly and remand the matter to Commissioner for fresh decision. Needless to say that EFFECTIVE opportunity of hearing would be granted to the appellant, who would also not seek unnecessary adjournments.
6. All the stay petitions and appeals are disposed of in above manner.
(Dictated & pronounced in open Court) (Archana Wadhwa) Member (Judicial) (Sahab Singh) Member (Technical) RM