2011 (2) TMI 891 - AT - Central Excise

Natural justices - it is apparent that the notice of hearing of the matter was not served upon the assessee till 4th of February 2004 - The same was attempted to be served by pasting the notice on the door of the closed premises of the factory however the act of pasting of the notice was done only around 4 p.m. of 5th of February 2004 in spite of the fact that the hearing was to take place on 6th of February 2004 at 11.30 a.m. In such circumstances it can hardly be said that there was sufficient opportunity given to the assessee to know about the fact the matter was fixed for hearing on 6th of February 2004. Premises having been closed it was to the knowledge of the serving officers as well as to the Commissioner (Appeals) that there could be no sufficient opportunity to the assessees to know about the contents of the notice pasted on the door - Held that the assessee is justified in contending about failure of the basic principle of natural justice while disposing the appeal by the Commissioner (Appeals) - Thus impugned order is liable to be set aside and matter remanded to the Commissioner (Appeals) to be heard afresh.

Summary

Issues: Failure of natural justice in the appeal process.

Issue 1: Failure of natural justice in the appeal process

The judgment pertains to two appeals heard together due to common questions of law and facts. The order under challenge was passed by the Commissioner (Appeals) and appealed by both the assessee and the department. The issue of failure on the part of the Commissioner (Appeals) to comply with the basic principles of natural justice was raised by the assessee. The impugned order revealed that the notice to the appellants was served through substituted service, as the original notice was returned undelivered. The department was directed to provide evidence of the notice served, which was subsequently submitted, showing that the notice was pasted on the closed factory premises. However, the hearing was scheduled for the very next day, leaving insufficient time for the assessee to prepare. The Tribunal emphasized that fair opportunity of being heard includes reasonable notice period before the hearing. It was concluded that the assessee was not adequately informed about the hearing date, and thus, the basic principle of natural justice was violated. The impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a fresh hearing, without expressing any opinion on the case's merits.

This detailed analysis of the judgment showcases the issues involved, the arguments presented, and the Tribunal's decision regarding the failure of natural justice in the appeal process.