TMI Blog1986 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 on the goods removed without payment of Central Excise Duty besides imposing a penalty of Rs. 2,000/-. 2. Factual Backdrops: As a result of the surprise checking of the records and stocks of the appellant s factory - a biri manufacturer - 8800 hand made biris in 22 pudas were found in excess of R.G.12A Register. During the course of checking of the factory some private records pertaining to manufacture of H.M. Biris were also recovered. After the scrutiny of private records it was found that the appellant had received 2,35,16,300 biris from different cathedras/persons during the period from 2-11-1981 to 12-8-1982, but only 16,48,750 H.M. Biris were accounted for in the R.G.12A Register during the said period. In his statement recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that 10 documents were relied upon by the Adjudicating Authority in the Show Cause Notice issued to the appellant. But copies of the same were not enclosed with the Show Cause Notice with the result the appellant had to make a request for the supply of the same vide their letter dated 18-11-1982, while denying the charges levelled in the Show Cause Notice. But they were not supplied. In the result, the appellant asked for the inspection of the documents which was allowed to be inspected at Satna. But on account of the peak season of the biri-patta, the record could not be inspected at Satna as the concerned notice to inspect the documents was of a very short duration. Ultimately, he submitted that afterwards the appellant did not hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rakesh Bhatia, learned SDR contended that since there was no request for personal hearing prior to the adjudication of the case, the question of granting personal hearing to the appellant did not arise. 5. After hearing both the parties we are of the view that the impugned order cannot be sustained on the admitted position by the Department that no personal hearing was given to the appellant. Under Rule 233A of the Central Excise Rules, 1944 it is mandatory on the authority issuing the Show Cause Notice to afford a reasonable opportunity of making a representation and of being heard in the matter. The relevant rule may be reproduced herein :- Rule 233A - Issue of show cause notice before confiscation of any property or imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, it was held that Section 124 is quite clear and unless a person waives his right of personal hearing he is to be heard by the adjudicating authority. As this has not been done in the present matter, the Assistant Collector s order is vitiated by a breach of the principles of natural justice and by the violation of Section 124. 7. In the light of the foregoing discussions the appeal is allowed. The impugned order is set aside and the case is remanded to the Adjudicating Authority for a fresh adjudication after giving the appellant a reasonable opportunity to be heard in person. The Cross-Objections also stand disposed of accordingly. 8.Since the matter is an old one, the Adjudicating Authority is expected to expedite the matter. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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