Custom, Excise & Service Tax Tribunal
Yes vs Unknown on 4 February, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT AHMEDABAD COURT:II Appeal No. E/1332/07; E/S/1331/07 Arising out of Order-in-Appeal No. Commr(A)/169/VDR-I/2007 dt.28/8/2007 Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara For approval and signature: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. M. Veeraiyan, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3. Whether their Lordships wish to see the fair copy of the order?
:
Seen
4. Whether order is to be circulated to the Departmental authorities? :
Yes ====================================================== Appellant/s Represented by M/s.R.S.Petrochemicals Ltd. Sh.W.Christian, Adv. Vs. Respondent/s Represented by CCE, Vadodara Sh.Sameer Chitrakara, SDR CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. M. VEERAIYAN, MEMBER (TECHNICAL) Date of Hearing:
4/2/2008 Date of Decision:
4/2/2008 ORDER No. /WZB/AHD/2007 Per: Mrs. Archana Wadhwa, Member (Judicial) After hearing the appellant through their ld. Advocate Shri Willingdon Christian, we find that the matter was earlier remanded by Tribunal to the original Adjudicating Authority with a specific direction to examine the limited point as to whether the CIXON received by the appellant from M/s.IPCL and CIXON-RS returned by them to M/s.IPCL are one and the same product or different by examining the chemical structure and other characteristics of the CIXON received and returned. The original Adjudicating Authority vide his remand order has sought a report from the Range Superintendent, which is to the effect that CIXON remains CIXON even after the removal of N-Hexane. However, he has observed that from the facts mentioned in the preceding paragraphs and the test report, it is clear that the conclusion of my predecessor that deriving of CXON-RS from CIXON amounts to manufacture, is correct. It is the appellants grievance that the original Adjudicating Authority should have given its own independent findings and it was not open to him to uphold that the findings of the earlier order, which was set aside by the Tribunal, as correct. It has further been pleaded that the impugned order has been passed without affording proper personal hearing inasmuch as one notice sent to them was received back by the Department and they have not followed the prescribed procedure of service of notice under the law.
2. After hearing the ld. DR, we find that though one notice sent to the appellant was received back with the remarks company closed. hence returned, the fact remains that the impugned order was passed by the original Adjudicating Authority without considering the defence plea of the appellant and as such, the same is in violation of principles of natural justice. We also agree with the ld. Advocate that it was not open to the original Adjudicating Authority to adjudge the correctness or otherwise of the earlier order-in-original, which has become nonest in the eyes of the law, having been set aside by the Tribunal. Further Commissioner(Appeals) has noted that the appellant has not advanced any arguments on the technical literature or chemical tests conducted by the Revenue and relied upon by the authorities. As such, we would like the matter be re-decided by the original Adjudicating Authority, for which purposes, we set aside the impugned order and remand the matter to the original Adjudicating Authority. Needless to say that the appellant would place on record the address to which notices may be send to them and would cooperate in the remand proceedings.
3. Appeal is allowed in the above terms. Stay petition is also disposed off accordingly.
(Pronounced in Court) (M. Veeraiyan) (Archana Wadhwa) Member (Technical) Member (Judicial) Nr 3