SHIVAM TEXTILES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD learned advocate Mr. Paresh M. Dave for the appellant and learned advocate Mr. Kalpesh Shastri for the respondent. The appeal is admitted herewith.

(2.) THE facts in the background are thus. The appellant -assessee engaged in the business of manufacture of textile fabrics was served with a show cause notice dated 30 -9 -2004 issued by the Assistant Commissioner, Excise. It was the case of the Excise Department that its officers had searched the appellant's premises on 8 -7 -2003 and again on 15 -7 -2003. In that they found certain quantity of yarn as well as the quantity of grey fabrics in the factory, which materials were manufactured by one M/s. PBM Polytex Ltd. and further that they were the materials stolen from the factory of PBM Polytex Ltd. The appellant was found to have utilized the said stolen yarn and fabrics for manufacture of grey fabrics and such grey fabrics were cleared under the challans whereas part of the stock was found lying physically in the premises, which were treated to be pending goods. According to the Department the appellant had not paid duty on those fabrics which were already removed from the factory. These allegations were made on the basis of panchnama and the statement of the appellant recorded in course of the search.

(3.) CONSIDERING the case of the appellant herein before the authorities that though the order of Assistant Commissioner was dated 20 -3 -2006, it was received in his office on 6 -4 -2006 by the clerk of the firm received it, who did not inform the proprietor -assessee about it, the moot question before the Tribunal was that what could be said to be the date of communication of the order. The issue of limitation was dependent thereon. Not only that the Tribunal decided the issue of limitation without hearing the assessee. While it was open to the Tribunal to arrive at its own findings it ought to have done the same only after giving opportunity of being heard to the assessee and not ex parte. Observance of natural justice and affording hearing to the respondent was sine qua non for the Tribunal in its adjudicatory process.