ORDER
V.K. Agrawal, Member (T)
1. M/s. Balbir Steels Pvt.
Ltd. have filed the present Appeal being aggrieved with the Order-in-Original No. 2/Commissioner/Tech/98, dated 7-11-1989 under which the Commissioner has determined the annual production capacity of the induction furnace for the period from 1-1-97 onwards.
2. Shri R. Santhanam, Id. Advocate, submitted that the impugned order has been passed by the Commissioner without affording any reasonable opportunity of personal hearing; that the personal hearing was fixed on 26-8-98, the notice for which was received by the Appellants only on 25-8-98; that immediately they requested the Commissioner to fix another date due to short notice and also due to their Managing Director having met with a car accident and confined to bed; that another date was fixed on 9-9-98, which was requested by them to be adjourned since the Managing Director was still not well and confirmed to bed; that similarly they requested for adjournment of hearing fixed on 24-9-98 and 5-10-98; that in their letter dated 30-8-98, the Appellants mentioned that the Managing Director was expected to be discharged in the middle of November, 1998; that on 15-11-98 they wrote to the Commissioner about the discharge of the Managing Director; that, however the Commissioner had passed the impugned order dated 7-11-98; that as such the impugned order has been passed in violation of principle of natural justice and without complying with the direction given in the remand order passed by the Tribunal vide Final Order No. A/433-433A/98-NB, dated 15-6-98; that in respect of another matter of the same Appellants during the same period, the matter was remanded by the Appellate Tribunal as reported in [1999 (114) E.L.T. 561] as they could not appear on account of prolonged sickness of their Managing Director. Ld. Advocate, further, submitted that the impugned order has also been passed without issuing any show cause notice; that further, the Supreme Court in the decision in the case of CCE v. Venus Casting Pvl. Ltd. [2000 (117) E.L.T. 273] has remanded the matters on the ground that in several cases the Commissioners have wrongly fixed the furnace capacity and that aspect has to be examined by the Tribunal.
3. Countering the submissions Shri B.C. Mahay, Id. DR submitted that a number of opportunities were extended by the Commissioner to the Appellants for hearing their matter which were not utilized by them; that if the Managing Director was confined to bed, they could have furnished written submissions and could have represented their matter by Counsel.
4. We have considered the submissions of both the sides. We observe that when the earlier Appeal filed by the Appellants came up for disposal, the Tribunal vide Final Order No. A 433-433A/98-NB, dated 15-6-98, allowed the same by way of remand to the Commissioner for de novo decision after grant of personal hearing to the Appellants. No doubt in the present matter the personal hearing was fixed a number of times. But in some cases the notice given by the Adjudicating authority was not sufficient inasmuch as the letter fixing the personal hearing on 26-8-98 was issued only on 20-8-98 and was received by the Appellants only on 25-8-98. Further, Managing Director of the Appellants who, according to the Advocate, was technical and competent person to explain the entire case, was bed ridden on account of an accident which has resulted in fracture. The learned Advocate has claimed that they had submitted the necessary medical papers also to the department in support of their submissions that their Managing Director was
bed ridden. We also observe that, no show cause notice has been issued in
the matter and as such the grant of personal hearing is essential for making
the Appellants represent their case effectively. In Venus Castings case also the
Supreme Court remanded the matter for considering the submissions of the
Appellants regarding wrong determination of the annual capacity of production. Thus following the ratio of the Supreme Court judgment in Venus Castings case, we allow the Appeal by way of remand to the Commissioner who
would decide the matter afresh after giving an effective opportunity of hear
ing to the Appellants.