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2023 (11) TMI 256 - CESTAT NEW DELHIPrinciples of natural justice - denial of opportunity of hearing - whether the Principal Commissioner was justified in passing the ex-parte order on 11.08.2015? - HELD THAT:- A perusal of the order passed by the Principal Commissioner would indicate that opportunity of personal hearing was granted to the appellant on 11.12.2014, 24.04.2015 and 11.02.2015 (should be 11.05.2015) and the last opportunity was provided on 15.06.2016. The facts stated leave no manner of doubt that an opportunity of hearing was denied to the appellant. The department has not contested the endorsement made by the Principal Commissioner on the application dated 06.07.2015 that the matter was being adjourned to 10.08.2015. The appellant did appear before the Principal Commissioner on 10.08.2015, but was informed that the next date would be communicated. What also needs to be noted is that the appellant, after it came to know of the order dated 11.08.2015 passed by the Principal Commissioner, immediately moved an application for rectification of mistake bringing to the notice of the Principal Commissioner the correct facts. Rectification of mistake - HELD THAT:- The application filed by the appellant for rectification of mistake should have been decided on merits and should not have been disposed of merely by stating that the Officer who had passed the order had, in the meantime, been transferred even before the filing of the application. The power given under section 74(1) of the Finance Act cannot be rendered infructuous if the Officer who passed the order is transferred. What has to be decided is whether there is a mistake apparent from the record. In a case where the Officer has not been transferred, of course it should be the same Officer who should decide the application, but in a case where the Officer has been transferred, the Officer who has been posted would have the jurisdiction to pass the order - It is, therefore, evident from the facts of the present case that an opportunity of personal hearing was denied to the appellant as even after adjourning the matter from 06.07.2015 to 10.08.2015 the Principal Commissioner did not hear the appellant nor did he examine the documents filed by the appellant. Tt is considered appropriate to remit the matter to the adjudicating authority to pass a fresh order on the basis of the evidence submitted by the appellant and after granting an opportunity of personal hearing to the appellant. For this purpose the appellant shall appear before the adjudicating authority on November 20, 2023, on which date the adjudicating officer may either hear the matter or fix another date for personal hearing - Appeal allowed.
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