Commissioner passing an order-in-original in less than 24 hours of conducting hearing - Matter remanded
SECTION 11A(11) of the CEA, 1944 reads thus -
(11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)-
(a) within six months from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (1);
(b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4) or sub-section (5).
Furthermore, Chapter 13, Part II of the CBEC Supplementary Manual also contains the following guideline -
2.1.8. It is clarified that notwithstanding this revision, in all cases where the personal hearing has been completed, orders will be passed by the Adjudicating Authority before whom the hearing has been held. Such orders should normally be issued within a month of the date of completion of the personal hearing.
We do not know whether the provisions of section 11A cited above have been followed to a ‘T' but nonetheless we know that you will be stunned if told that an adjudicating authority of the rank of Commissioner some time back passed an Order-in-Original in less than 24 hours.
In this crorepati case, majority of the relied upon documents were given to the appellants on 30/07/2012. The appellants were called for personal hearing on 22.08.2012 and when they sought additional time the same was denied and final hearing was held on 30.08.2012. In any case, they attended the hearing on 30.08.2012 and submitted the interim reply and further reply was to be submitted. In fact, further submissions were submitted by M/s Apex Inc. & by Apex Industries to the office of Commissioner on 31.08.2012. M/s Sunbeam Home Appliance also filed written submissions on 07.09.2012.
However, the order-in-original was passed on 31.08.2012 itself and issued on 07.09.2012 allegedly without considering the above submissions.
Probably, some diktat from the administrative apex must have prompted the adjudicating authority to conduct the proceedings with a lightning speed.
So, the appellants are before the CESTAT and after narrating the above sequence of events also submit that they had raised five pertinent issues before the adjudicating authority but on the same there are no findings given - either rejecting or accepting the same.
The Revenue representative obviously had to reiterate the contents of the o-in-o.
The Bench observed thus -
"5. It is found that due to clubbing alone the demand would be approximately Rs.88 lakhs. It is observed that when the hearing was held on 30.08.2012 and appellants had asked for sometime, a reasonable time should have been given to them so as to enable them to make further written submissions. We also note from the Order-in-Original that on most of the issues Ld. Commissioner has not given any findings on the appellants' submissions. The Ld. Advocate for the appellant makes an offer of deposit of Rs.50 lakhs within a period of 12 weeks and suggests that the matter can be remanded to the Ld. Commissioner wherein they would explain each and every issue and thereafter Ld. Commissioner can adjudicate the case.
6. We consider the above offer as a reasonable one. Main appellant (M/s Apex Home Appliances) to deposit Rs.50 lakhs in cash within a period of 12 weeks from 22 nd April, 2013 and report compliance to the Ld. Commissioner on 12th August, 2013. In the meantime, all the appellants may resubmit their submissions afresh to the Commissioner. Commissioner may thereafter give an opportunity of hearing and decide the matter through a speaking order. It is made clear with the Commissioner would hear the case only after deposit of the above mentioned amount. Further, appellants will not seek adjournments as far as possible and Commissioner would decide the case expeditiously. We are not expressing any opinion on any issue."
All the stay petitions and appeals were disposed of in above terms.