The Mumbai bench of the Customs , Excise and Service Tax Appellate Tribunal ( CESTAT ) directed the department to provide one opportunity to overcome the impediment of maintainability as the appeal against the demand under the central Excise (Valuation )Rules, 1975 rejected on limitation. The Tribunal set aside the finding on the allegations in the notice and remand the matter back to the original authority to decide the matter afresh after affording the assessee opportunity to be heard.
M/s IDL Chemicals, challenged the order of Commissioner of Central Excise (Appeals, Mumbai Zone – I which caused rejection of their appeal, against order of the original authority fastening differential duty liability of ₹ 1,75,980 on clearances effected to their concern at Hyderabad and to M/s Rajasthan Explosive and Chemicals Ltd ( RECL ) between January 1992 and April 1993 by adoption of methods prescribed in Central Excise ( Valuation ) Rules, 1975, both on ground of limitation and on merit.
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The order of the original authority decided against the appellant despite absence of the assessee on the days fixed for personal hearing and, though this ground was pleaded in appeal, the first appellate authority too disposed off the dispute without the appellant being heard.
It was decided on conclusion that the appeal was not maintainable for having been filed beyond the period prescribed in section 35 of Central Excise Act, 1944; such disposal did not warrant hearing the appellant on merits. However, the first appellate authority went on the affirm the order impugned before it on merit too which was unwarranted in the light of maintainability having been ruled out.
The appellant submitted that had they been offered opportunity they would have been able to overcome the impediment of maintability.
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The two member bench of Mr C J Mathew, Member ( Technical ) and Mr Ajay Sharma, Member ( Judicial ) observed that the first appellate authority had accepted the explanation, as well as computation of delay of mere 21 days, for all practical purposes.
“However, as both the lower authorities had decided to the detriment of the appellant herein, on merits, without hearing them, the validity of the findings are jeopardized. In these circumstances, we find no alternative but to set aside the finding on the allegations in the notice and remand the matter back to the original authority to decide the matter afresh after affording the assessee opportunity to be heard.”, the Tribunal held.
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