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TMI Blog2016 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs on the petitioners. 2. The petitioners were served with show cause notice dated 14.12.2004 why excise duty with interest and penalty not be recovered. It is not in dispute that after service of show cause notice, adjudicating authority kept the proceedings in abeyance and revived the hearing only in the year 2012. In the meantime, the petitioners' factory had shutdown. Notices of hearing of the show cause notice, therefore, returned unserved. The adjudicating authority, therefore, proceeded ex-parte and passed the final order confirming the duty demand with penalty and interest. This order the petitioners challenged before the Tribunal and requested for remand of the proceedings since the order in original was passed ex-parte. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of natural justice, but in the case in hand, we do not find reason to do so inasmuch as, the appellant herein neither filed any reply to the show cause notice which was issued to them on 14.12.2004 nor represented before the adjudicating authority seeking time for filing reply to show cause notice. There is nothing on record to indicate that they had not received show cause notice. In view of this, we hold that appellants herein were non-cooperative with the adjudicating authority. At the same time, there being a claim of violation of principles of natural justice, in the interest, in our view, the appellants should be granted an opportunity for filing reply to the show cause notice and being heard by the adjudicating authority. 5. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th August, 2015 made in Special Civil Application No.15279 of 2014 in case of Waghbakriwala Rayons & 1 V/s. Commissioner of Central Excise and Surat and Anr. 4. Learned counsel, Shri R.J.Oza, for the Department on the other hand pointed out that even after service of the show cause notice, petitioners had not filed any reply. Notices were dispatched to the factory address given by the petitioners. Since 2004, petitioners are facing proceedings for recovery of unpaid excise duties for a sum of Rs. 4 crores (rounded off) with matching penalty and interest. Tribunal under Section 35C of the Central Excise Act has ample powers to impose suitable conditions. 5. We notice that in Avaya Global Connect Ltd. (supra), the Division Bench of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooperted like in the present case, however, the assessee is to be given additional opportunity, the Tribunal may issue direction directing the appellant assessee to deposit some amount while remanding the matter to the original adjudicating authority and before his case is considered on merits by the original adjudicating authority on remand. The aforesaid direction as such cannot be said to be a order of predeposit as per section 35F of the Act. Such a direction of deposit of some amount while remanding the matter to the original authority can be said to be imposing of condition of deposit of some amount before any de novo adjudication by the original authority on remand which was necessitated due to the reasons attributed to the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case. Depositing certain amount as a pre-condition to such remand therefore is well within the power of the Tribunal, though the same may not be termed as a pre-deposit of the duty since there can be pre- deposit only of an amount of duty interest or penalty which has been confirmed. 7. When the Tribunal, therefore, in the present case set aside the order-in-original, there was no order confirming duty penalty or interest and in that sense, the condition of pre-deposit of any amount could not have been imposed. This is, however, not the same thing to suggest that even if the facts otherwise so merited, the Tribunal had no jurisdiction to impose suitable condition of depositing appropriate amount. 8. Reverting to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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