TMI Blog2011 (3) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that the respondent was present in the course of hearing - Held that:- Mere presence of the assessee in the course of hearing of the matter does not empower the department to encroach upon the right of the assessee to have a fair opportunity of placing before the adjudicating authority the defence, whichever the assessee wants to place on record - when the law clearly requires issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rejected. 3. We have heard the departmental representative and with his assistance we have perused the records. The original application filed by the respondent for refund claim came to be rejected by the department without issuing any show cause notice to the respondent. Against the order of rejection, the matter was carried before the Commissioner (Appeals), who set aside the said order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the order of the adjudicating authority. 5. The impugned order clearly discloses reference to three orders by the Tribunal, namely, M/s. Veera Spinning Mills vs. CCE reported in 2001 (137) ELT 437; M/s. Pentium Computer Academy vs. CCE reported in 2001 (137) ELT 1020 and CCE, Bhopal vs. Raymond Ltd. reported in 2000 (119) ELT 303, in support of his decision that in the absence of show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee can certainly avail the assistance of the advocate or the chartered accountant in ascertaining the risk position in relation to the facts of the case and accordingly prepare his defence. No such opportunity can said to be availed by the assessee merely by his presence at the time of hearing of the matter.Besides, when the law clearly requires issuance of the show cause notice before the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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