Power Batteries v. Customs & C. Ex. Sett. Comm. , New Delhi
2016-02-10
J.K.JAIN, P.K.JAISWAL
body2016
DigiLaw.ai
ORDER : Heard. By this writ petition, under Article 226 of the Constitution of India, the petitioner is challenging the order dated 30-12-2014 (Annexure-P/1) passed by the Settlement Commission in Settlement Application No. 4088/2014 to 4090/2014, dated 3-3-2014. 2. Learned counsel for the petitioner has drawn our attention to Page 30 of the writ petition and submits that hearing in the settlement application took place on 11-9-2014 and 13-10-2014 and on both the dates, Shri Pradeep Asawa, CA, representative of the petitioner was present and thereafter, the matter was closed for orders. In between, the Settlement Commission directed the Revenue to file certain documents. In pursuant to the aforesaid direction, on 11-12-2014, the respondents submit that application as desired by the Bench and on the basis of aforesaid calculation, interest liability has been revised. On coming to know about the same, the petitioner has filed additional submissions on 22-12-2014 (Annexure-P/4) but the Settlement Commission without giving any opportunity of hearing to the petitioner, passed the impugned order dated 30-12-2014. 3. The sole contention of the learned counsel for the petitioner is that the aforesaid calculation was filed on 11-12-2014 at the back of the petitioner and therefore, an opportunity should be granted to the petitioner to explain the same. To support the aforesaid, he has placed reliance to the decision of Apex Court in the case of Aurangabad Electricals (P) Ltd. v. Commissioner of Central Excise and Customs, Aurangabad reported in 2011 (1) STD 118 : 2010 (260) E.L.T. 24 (S.C.) wherein, the Apex Court while reserving the order passed by the Tribunal observed that the technicalities should not defeat rendering of complete justice to a litigant and remanded the case to the Tribunal for fresh consideration. Para 11 of the judgment is relevant, which reads as under :- 11. The learned senior counsel for the assessee would submit that the adjudicating Commissioner and the Tribunal has non-suited the appellants mainly on the ground that the appellants and M/s. Bajaj have neither supplied the details of final product and the landed cost of the material supplied during investigation nor in their reply to the show cause notice. It is also observed that the appellants did not produce any material/data as to actual expenses incurred on account of freight, loading, unloading charges, profit margin, etc.
It is also observed that the appellants did not produce any material/data as to actual expenses incurred on account of freight, loading, unloading charges, profit margin, etc. The learned senior counsel would submit that the appellants could have supported their defence pleaded in their objections filed to the show cause notice by producing relevant documents including the certificate issued by its chartered accountant but due to unavoidable and unforeseen circumstances, they could not produce the same. It is submitted that this lapse should not be put against the appellants and non-suit them only on this ground. In support of his submission, he would draw our attention to the Certificate issued by the Chartered Accountant in respect of valuation of normal price of Magneto Assemblies manufactured and sold by M/s. Aurangabad EL to M/s. Bajaj in wholesale, which was in support of costing. The said Certificate issued by Mukund Mankar and Co., Chartered Accountant, points out freight charges incurred by M/s. Aurangabad EL for getting material from Bajaj to M/s. Aurangabad EL, as well as loading and unloading charges, consumables overheads and profit. If such payment was made, then the whole premises on which show cause notice issued pales into insignificance. The appellant had produced the Certificate along with the other papers filed before the Tribunal, may be after the appeals were heard and reserved for judgment. In the normal course, we would not have accepted either the submission of the learned senior counsel or we would have taken note of the Certificate. Keeping in view the well-settled principles laid down by this Court that technicalities should not defeat rendering of complete justice to a litigant, we think it appropriate to remand the matter to the Tribunal to verify and consider whether the Certificate which is already placed on record by the appellant, would assist them in support of their defence. 4. In view of the aforesaid and considering the fact that admittedly, no opportunity had been granted to the petitioner and, therefore, we allow the prayer and direct the Settlement Commission to consider the additional submissions of the petitioner filed on 22-12-2014 and after granting opportunity of hearing to the petitioner, pass an appropriate order within a period of two months from the date of filing of certified copy of the order. Till then, the impugned order 30-12-2014 (Annexure-P/1) shall be kept in abeyance.
Till then, the impugned order 30-12-2014 (Annexure-P/1) shall be kept in abeyance. It is made very clear that we have not expressed any opinion on the merits of the case. 5. With the aforesaid, the writ petition is disposed of.