ORDER
S.L. Peeran, Member (J)
1. This appeal arises against the order-in-original No. 32/2001, dated 14-8-2002 by which the Commissioner of Central Excise, Coimbatore has re-determined the Annual Capacity Production and has confirmed the demand of Rs. 1,55,00,000/-. He has noted in the order that the action relating to the penalty and interest will be taken up subject to the final order of the Apex Court in SLP Appeal (Civil) Nos. 22092-22093/97. The impugned order is assailed on the following grounds –
(i) That there is a Violation of Principles of Natural Justice inasmuch as that the appellants could not appear before the Commissioner on the date of hearing due to unavoidable circumstances and the order has been passed without hearing them. It is stated that a fresh date should have been fixed and notice of hearing should have been given to them to enable them to plead their case.
(ii) That the impugned order has not been signed by the Commissioner. The draft order which has been produced in the Court at their instant is not an order in the eye of law and in this regard they rely on the following judgments : (a) Richimen Silk Ltd. v. CCE, Hyderabad - 2001 (127) E.L.T. 795 (Tri. - Chennai) (b) Apple International v. CC, Nhava Seva - 2000 (120) E.L.T. 671 (T) (c) IPL Ltd. v. CCE - 2001 (127) E.L.T. 338 (Madras) (d) Chamundi Steel Castings (I) Ltd. v. CCE, Chennai - 1999 (108) E.L.T. 578 (T) It is argued that in the similar circumstances the Tribunal has remanded the matter for de novo consideration with a direction to the Commissioner that he shall hear the appellants and pass a speaking order.
It is further argued that the Hon’ble Delhi High Court had stayed the Notification No. 44/97. In the meanwhile the Commissioner has passed an order on the said Notification and, therefore, it cannot be said to be a correct order as the Notification had been stayed.
2. Further, it is stated that the abatement claimed by them had not been considered and that they have not been given an option in the matter. They stated that the duty should have been computed on the basis of their actual production. They also contend that the guidelines given by the Apex Court in the case of UOI v. Supreme Steel & General Mills reported in 2001 (133) E.L.T. 513 (S.C.) is required to be observed; which has not been done in the matter.
3. Appearing for the appellants ld. Counsel submits that the factory had been closed for the relevant period and the power supply had been disconnected. There is no question of computing duty for the period, when the factory was closed. Ld. Counsel seeks for remand of the matter so that an opportunity is granted to the appellants to put forth their case. He submits that the infirmities are not curable. Therefore, the matter may be sent back for re-determination in the light of the submissions made above.
4 Ld. SDR submits that a direction be given to the Commissioner to consider the judgment rendered in the case of CCE v. Venus Castings reported in 2000 (117) E.L.T. 273 (S.C.) = JT 2000 (4) (SC) 77 besides considering the direction given by the Apex Court in the case of UOI v. Supreme Steels & General Mills and Ors. (supra).
5. We have considered the submissions made by both sides and note that there is a clear violation of Principles of Natural Justice in the matter. In a matter involving high stakes of revenue, the appellants prayer for adjournment should have been considered and another date of hearing should have been given to enable the appellants to explain their case. We note that there are other infirmities. The effect of the Notification in question had been stayed by the Hon’ble High Court. Now the Apex Court also given their rulings in the case of UOI v. Supreme Steels & General Mills (supra). The appellants grievance is that they have not been informed about the formula adopted by the department by which the duty has been worked out. They had also not given an option in the matter. They have further submitted that their factory had been closed and the power supply had been disconnected. In view of these factors, the matter is required to be sent back to the authority to enable them to fix a fresh date of hearing and give the appellants an opportunity to put forth their case. The Commissioner shall re-decide the case in the light of the submission made and in the light of the judgments cited by ld. SDR. Thus the appeal is allowed by way of remand for de novo consideration.