ORDER
Mrs. Archana Wadhwa, J.
1. Vide the impugned Order, the Commissioner adjudicates upon the show cause notice issued to the appellants and confirms the demand of duty of Rs. 5,59,991.80 and imposes personal penalty of an identical amount, on the ground that the appellants were required to pay the above amount of differential duty in respect of the clearances made by them by paying lesser amount of duty than what was required to be paid by them, in terms of the Annual Capacity fixed by the Commissioner.
2. Shri K.K. Bhattacharjee, learned Consultant appearing for the appellant company submits that against the provisional fixation of Annual Capacity, the appellants filed representations before the Commissioner, who finally fixed the Annual Capacity without giving any reasons and without affording any opportunity of personal hearing to them. Against such final fixation of Annual Capacity, they again made representations to the Commissioner for redeciding the matter after affording them personal hearing. After repeated reminders, the said representations were rejected by the Commissioner without affording any reasons and without hearing them in person. Being aggrieved with such rejection of their representations by the Commissioner vide a letter communicated to them by the Deputy Commissioner, they filed an appeal before the Commissioner (Appeals). When the said appeal was still pending before the Commissioner (Appeals), the Commissioner adjudicated upon the show cause notice issued for differential duty and confirmed the demands. It is the grievance of the appellants that when the basic issue of fixation of Annual Capacity Production has not been finally decided by the higher appellate authorities, the adjudicating authority was not justified in confirming demand of duty against them.
3. However, learned Advocate submits that now the Office of the Commissioner (Appeals) has returned the appeal back to the appellants inasmuch as the same was against an Order passed by the Commissioner of Central Excise. He, in this context, places reliance upon the Tribunal’s decision in the case of Arun Vyapar Udyog Ltd. vs. Commissioner of Central Excise, Chennai reported in 2000 (121) ELT-420(T) and submits that as the decision of the Commissioner fixing Annual Capacity Production was a non-speaking Order, the matter should be remanded to the Commissioner for de-novo decision for re-fixing the Annual Capacity through a speaking Order and then to decide the guantum of differential duty, if any.
4. We have also heard Shri A.K. Chattopadhyay, learned J.D.R. for the Revenue.
5. After giving our careful consideration to the issue involved, we find that that the basic issue of fixation of the Annual Capacity Production has been challenged by the appellants by way of representations to the Commissioner. The said representations have not been decided by the Commissioner. The Order fixing the Annual Capacity Production is also without any reasons and is a non-speaking Order. In this view of the matter, the confirmation of demand of duty against the appellants was not legal and justified. Accordingly, we set aside the impugned Order and remand the matter to the Commissioner for first deciding the issue and re-fixing of the Annual Capacity through the speaking Order, after complying with the principles of natural justice, and then to decide the quantum of differential duty, if any. The appeal is disposed of in the above manner.
Pronounced in the open court.