TMI Blog2013 (9) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... er Works v. Commissioner of Customs & Central Excise, Tirupathi [2007 (3) TMI 6 - SUPREME COURT OF INDIA] and Commissioner of Central Excise and Customs, Gundur v. Crane Betel Nut Powder Works [[2009 (6) TMI 530 - CESTAT, BANGALORE]. Now, we also record the submission made on behalf of the learned Government Pleader that the Central excise tariff has escaped the notice of the authority, though such provisions as they now stand were brought in after the Supreme Court had rendered the decision in Crane Betel Nut [2007 (3) TMI 6 - SUPREME COURT OF INDIA]. We do not express anything in either way on any matter touching the merit of the rival contentions, having regard to the nature of the conclusions arrived at on the question of hearing. - Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat proposition is salutary, we may note that it was so laid down while exercising the authority in relation to a case of scheduled caste persons, who were in the category of Selection Grade Auditors in the Department of Indian Audit and Accounts Service. The entire issue in that case was decided by the court. However, in the case in hand, the prime question that would have to be ultimately decided is as to whether the product dealt with by the dealers, who are the appellants before us, would fall under a particular entry of the KVAT Act, chargeable at rate that applies in terms of that entry. In our view, it is not advisable to decide on such an issue relating to the nature of a product. That is an issue that has to be first decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authority to decide on the request for clarification was constituted as a Three Member Committee. That being so, the Commissioner's exercise of hearing the parties would have been a futile exercise in terms of the statutory provisions. If he had heard the arguments and seen the samples, that could have been at any time after November 1, 2008 to which date, the case stood posted at one point of time and after that, the only entry seen is one noted above. This means that whatever had happened till that point of time cannot be treated as due hearing either as personal hearing extended by a single officer or as a matter of institutional hearing. We say this because, the Department file further shows that Mr. Anil Kumar appeared and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier round have to be complied within a period of two months. On the totality of facts and circumstances and on preponderance of probabilities on the basis of the affidavit and pleadings in the writ petition, we are of the view that in the case in hand, no proper opportunity of hearing was extended to the dealers in terms of section 94 of the KVAT Act. In the aforesaid view of the matter, we may record for the sake of convenience that the learned senior advocate appearing on behalf of the dealers pointed out the entry at serial No. 2 in the Third Schedule to the KVAT Act, vis-a-vis, the entries at Tariff item 0802 90 in Chapter 8 of the Central Excise Tariff Act, 1985. Reference was also made on behalf of the dealers to the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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