Judgment:
S.S. Kang
1. Revenue filed the application for early hearing of the stay applications. Since the stay applications are listed for hearing today, the present application for early hearing is dismissed as infructuous.
2. Applicants filed applications for waiver of pre-deposit of the dues in respect of the appeals filed against the two impugned orders passed by the Commissioner (Appeals).
3. As the common issue is involved, therefore, all the stay applications are being taken up together for disposal.
4. Applicants are engaged in the manufacture of excisable goods namely lubricating oil classifiable under Chapter 27 of the Central Excise Tariff Act and lubricating preparations classifiable under Chapters 34 and 38 of the Central Excise Tariff Act. The assessments for the period in dispute were provisional and the adjudicating authority finalized the assessments and demand of differential duty is confirmed. The earlier orders passed by the adjudicating authority were challenged by the applicants and the Commissioner (Appeals) vide order dated 11.7.2001 partly allowed the appeal filed by the appellant. The appellant and Revenue filed appeals before the Tribunal and the Tribunal vide final order dated 21.9.2007 remanded the matter to the adjudicating authority for de novo consideration. In pursuance of the remand order passed by the Tribunal, the adjudicating authority finalized the assessments for the period in dispute and confirmed the demand of differential duty. Appellant filed appeals before the Commissioner (Appeals) and the Commissioner (Appeals) dismissed the appeals.5. The contention of the applicant is that the present proceedings are in violation of the principles of natural justice. In pursuance to the remand order passed by the Tribunal, the adjudicating authority issued a Notice of Hearing dated 14.12.2007 fixing the date of hearing on 15.1.2008. As the Government declared a holiday on account of Makara Sankranti, applicant sought personal hearing in the third week of January 2008. Subsequently, appellant vide letter dated 25.1.2008 made a request to fix the personal hearing between 18.2.2008 to 22.2.2008. Subsequently, vide letter dated 14.2.2008 applicant informed the adjudicating authority that their officers who were to appear the hearing were out of India and will be available between 25.2.2008 and 28.2.2008. In pursuance to this letter applicant received a letter signed on 19.2.2008 whereby the appellant were directed to submit the evidence in respect of the deductions claimed by the applicants and the applicants were informed that personal hearing is fixed on 22.2.2008. The contention of the applicant is that this letter is received by them on 21.2.2008 at 6.00 p.m. and the applicant immediately wrote to the adjudicating authority seeking time as the applicants were under the process of collecting data and documents which were required to be submitted in support of their claim. Thereafter applicants received a letter dated 27.2.2008 directing the applicants to submit the relevant evidence in support of their claim on the same day by 3 p.m. In pursuance to this direction applicants vide their letter dated 27.2.2008 submitted necessary documents in support of their claim. In spite of this, the adjudicating order was passed on 26.2.2008 without giving opportunity of hearing to the applicant and in that the adjudicating authority held that the applicants had not produced any evidence in support of their claim.
6. This order is upheld by the Commissioner (Appeals) on the same ground that the applicants had not filed any evidence in support of their claim. The contention of the applicants is that the applicants in response to letter dated 27.2.2008 had submitted the evidence by way of copies of depot invoices, communication from the distributors, copies of credit notes and similar documents in support of their claim and these were not taken into consideration by the adjudicating authority. Some of the documents were also submitted on the next day i.e. on 28.2.2008. In these circumstances, the contention is that the impugned order is required to be set aside as the same is passed in violation of the principles of natural justice. Applicants also submitted that the demand confirmed under Order-in-Appeal No. US/19/RGD dated 17.6.2011 is overlapping as the demand for the same period is also confirmed by Order-in-Appeal No. AH-13/226/RGD dated 28.10.2009 which is also the subject matter of the present appeals. Hence the demand is not sustainable.
7. Revenue relied upon the findings of the lower authority to submit that as the applicants claimed the deductions, therefore the onus is on them to produce the evidence. As the applicants failed to do so, therefore, the impugned order is passed. The contention is also that in spite of ample opportunities granted to the applicants, the relevant documents were not produced. It is also submitted that in case the applicants submitted before the adjudicating authority which were not taken into consideration, the appellant had not produced the same before the appellate authority also. In these circumstances the contention is that as the applicants failed to produce evidence in respect of the claim, therefore, it is not a case for total waiver of the dues.
8. We find that the dispute is in respect of deductions claimed by the applicants at the time of finalization of the assessments which were disallowed by the adjudicating authority and upheld by the Commissioner (Appeals). The deductions were disallowed merely on the ground that the applicants had not produced any evidence in support of their claims. From the correspondence on record which show, as narrated above, the applicants were directed to submit the documents in support of their claim vide letter dated 27.2.2008 on the same day by 3 pm. The applicants submitted copies of documents on the same day under letter dated 27.2.2008. However, the adjudication order was passed on 26.2.2008 a day before issuance of the letter dated 27.2.2008 whereby the applicants were directed to submit the documents by 3 p.m on 27.2.2008.9. The documents submitted by the applicants in response to the letter dated 27.2.2008 were not taken into consideration by the Commissioner (Appeals), though this plea was taken by the applicants. We also find that the demand in Order-in-Appeal No. US/19 dated 17.6.2011 is also part of the proceedings which were the subject matter of Order-in-Appeal No. AH-13 dated 28.1.2009. In these circumstances, we find merits in the contention of the applicants that the impugned orders are passed in violation of the principles of natural justice. Hence the impugned orders are set aside after waiving pre-deposit of dues and the matter is remanded to the adjudicating authority to decide the matter afresh after affording an opportunity to the appellant after taking into consideration the evidence submitted by the appellant. Both sides are at liberty to produce evidence in support of their claim.
10. Appeals are disposed of by way of remand.