ORDER
S.L. Peeran, Member (J)
1. This stay application and appeal arises from ex-parte dismissal of the appeal by Commissioner (Appeals) under Section 35F of the Act. The Commissioner (Appeals) by Interim Order had directed the appellants to pre-deposit duty amount of Rs. 8,73,33/547 which had been confirmed in the Order-in-Original. In the appeal before the Commissioner, the appellants had pointed out that the show cause notice dated 5.8.1998 had demanded the differential duty & Rs. 61,12,775 payable on value of excess abatement claim over and above the actuals incurred besides duty of Rs. 1,31,14,895 being the duty payable on the amounts collected “as rent on returnables in terms of Section 11-A read with Rule 5 of CE (Valuation) Rules. Thus a total duty amount of Rs. 1,92,27,670 had been demanded. It was also pointed out in the Stay application by the appellants before the Commissioner (Appeals) that the Assistant Commissioner in the Order-in-Original had confirmed amounts which had not been computed in the show cause notice and were far excessive than the one demanded in the show cause notice. They had also pleaded about the violation of principles of natural justice inasmuch as Cost Auditor’s report has not been furnished to them before the hearing and they have not been heard. Further pleas were that they were entitled to claim of abatement towards “freight, sales tax, turnover tax and rentals of returnables” to arrive at the assessable value as on all these points the law had been settled in terms of Apex Court’s judgment. However, the Commissioner has not considered all these aspects and without due consideration had directed them to pre-deposit the entire amounts. As there was a failure to deposit, the Commissioner (Appeals) has dismissed their appeal under proviso to Section 35F of the Act. Hence this stay application and appeal.
2. We have heard both sides in the matter on all aspects of the matter.
3. Ld. Counsel has fervently prayed for remand of the matter to the original authority as the confirmation of demands in the Order-in-Original were beyond the terms of computation of duty in terms of the show cause notice. He has also argued that demands could not have been confirmed even in terms of the show cause notice as they were entitled for the benefits for abatements on various heads in terms of the Apex Court judgment. He also submits that the Cost Auditor’s report is also defective and they have not been heard on the same.
4. Ld. DR Shri S. Kannan points out to the Order in-Original on all aspects of the matter and submits that confirmation of demands/claim made in show cause notice at least be considered for the purpose of directing the appellants to pre-deposit the amounts. He further submits that as the appellants had not given details as directed by the department, therefore the department had called for Cost Auditor’s report. The appellants cannot find fault with the approach adopted by the department in working out the Cost Auditor’s report. He submits that after the Cost Auditor’s report was furnished to the appellants, the appellants had not specifically asked for any hearing on the same. Therefore, the Commissioner’s direction to pre-deposit the entire amount is justified.
5. On a careful consideration of the submission, we are constrained to observe that the Commissioner (Appeal) was not justified in not giving a hearing to the appellants while passing Interim Order as well as the final order. Although the Commissioner has recorded the submission, but no findings have been given to how demands for an amount of Rs. 8,73,33,547 can be made by Assistant Commissioner when the show cause notice had raised demands only to the extent of Rs. 1,92,27,670. Therefore, the Commissioner was also not taken into consideration the legitimate abatements the appellants are entitled to in terms of Apex Court’s judgments. Therefore, the Commissioner (Appeals)’s Interim Order directing the appellants to pre-deposit the entire amount in terms of the Order-in-Original is totally unsupportive and not justified in law. As the final order and Interim order of the Commissioner (Appeals) is not sustainable, we are of the considered opinion that the matter instead of going to Commissioner (Appeals) for de novo, has to be remanded to the Assistant Commissioner. The reason being that the Assistant Commissioner has also not passed a speaking order and there is no application of mind insofar as confirmation of demands are concerned. On a perusal of the show cause notice, we notice that the demands raised were to the extent of Rs. 1,92,27,670. However, in the Order-in-Original the Assistant Commissioner has surprisingly had confirmed the demand of Rs. 8,73,33,547. The Assistant Commissioner has not given any reasons as to how these demands were enhanced when the same have not been raised in the show cause notice. Furthermore, the plea of denial of natural justice with regard to non hearing on the Cost Auditor’s report is also justified. Assistant Commissioner has also not taken into consideration the pleas on abatements on various heads in terms of the Apex Court judgment. As the Assistant Commissioner’s order is also not a speaking order, therefore we set aside both the orders and remand the same to the Assistant Commissioner to decide the case de novo after giving a fair opportunity of hearing to the appellants. The appellants are entitled to place such evidence as is necessary to establish their case. The Assistant Commissioner, if necessary, may amend the show cause notice with regard to the demands raised by him in terms of the Annexures to the show cause notice dated 5.8.1998 as per law. Thus the appeals are allowed by remand to the original authority)’. At this stage, Ld. DR submits that the revenue involved is very high and a direction be given to the Assistant Commissioner to adjudicate the matter expeditiously within a reasonable period of 4 months from the date of receipt of this order. The plea made by Ld. DR is justified. The Assistant Commissioner is required to adjudicate the matter expeditiously, preferably within 6 months from the date of receipt of the order.
