Court No. - 33 Case :- WRIT TAX No. - 2400 of 2009 Petitioner :- M/S Hans Metal Pvt. Ltd. Upsidc & Another Respondent :- Union Of India Thru' Secy. & Others Petitioner Counsel :- S.D. Singh,Diptiman Singh Respondent Counsel :- R.C. Shukla,Jafar Munis Hon'ble Bharati Sapuru, J.
Heard learned counsel for the petitioner and the learned Senior Counsel for
the Union of India, Sri Zafar Munis.
This writ petition has been filed against an order passed by the Commissioner
(Appeals), dated 16.9.2009, in which he has taken a view that the appeal filed
by the petitioner was delayed beyond 60 days and therefore, he did not have
the power to condone the delay made in filing the appeal.
The view as taken by the Commissioner in so far as the provisions of Section
35 of the Central Excise Act is concerned, is correct. However, the learned
counsel for the petitioner has argued that the order dated 14.1.2009, i.e. the
order imposing penalty on the petitioner is without any basis on account of the
fact that officer imposing the penalty has recorded that there was no doubt in
his mind that the petitioner had avoided to pay the tax of Rs.2,00,000/- and
odd by removing the goods in a clandestine manner. He has also argued that
the finding is recorded simply on the basis of the presumption and there was
no material before the adjudicating authority to establish his finding. The
other part of the case is that one of the Directors of the Private Company was
suffered from a terminal disease and ultimately succumbed to it. The
certificate of the hospital was also brought on record by the other Director
who was assisting to other Director.
Since the order imposing the penalty is without any basis, it is only
appropriate that the matter be remanded to the assessing authority to give
reasons for coming to the conclusion that he has. I accordingly remand the
matter to the assessing authority who will decide the matter within three
months from the date of the production of a certified copy of this order, in
accordance with law. He shall give to the petitioner an opportunity of hearing.
With the aforesaid direction the writ petition is disposed of.
Dated: 4.1.2010
AKJ.