2011 (2) TMI 891

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..... sed by the Commissioner (Appeals). To the extent the assessee is aggrieved by the said order, they have referred the appeal against the same, whereas to the extent, the department is aggrieved by the impugned order, the department has come in appeal.   2. Before going into the rival contentions in relation to the merits of the case, it is, however, necessary to address the issue of failure on the part of the Commissioner (Appeals) to comply with the basic principles of natural justice sought to be raised by the assessee.   3. The impugned order discloses that the Adjudicating Authority had passed the order in favour of the assessee, which was sought to be challenged by the department before the Commissioner (Appeals). The impugn .....

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..... onal hearing was pasted on the main entrance gate of the factory. It is not in dispute, and in fact, it is recorded in the Panchnama itself that the hearing of the case was fixed on 6th of February 2004 at 11.30 hrs. In other words, the notice about hearing of the appeal fixed on 6th of February 2004 at 11.30 hrs. was sought to be served by way of substituted service by pasting the notice on the entrance door of the gate of the factory of the appellants which was already closed. In spite of the above facts, the Commissioner (Appeals) proceeded to dispose of the appeal holding that the appellants did not bother to appear before him for personal hearing in spite of service of notice.   5. It is settled law that proceedings before any ju .....

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..... bsp; 7. Considering the above noted facts, we find that the assessee is justified in contending about failure of the basic principle of natural justice while disposing the appeal by the Commissioner (Appeals). On this ground alone the impugned order is liable to be set aside and matter remanded to the Commissioner (Appeals) to be heard afresh and to decide the same in accordance with provisions of law. We make it clear we are not expressed any opinion on the merits of the case.   8. In the result, appeal filed by the assessee succeeds, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal afresh. Consequently, the appeal filed by the department also stand disposed of. Considerin .....

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