MARWA CEMENT INDIA (P) LTD. Vs. CESTAT

JUDGEMENT

(1.) Both the writ petitions have been filed by the assessee against the orders dated 26-11-2008 [2009 (237) E.L.T. 511 (Tribunal)] and 3-12-2009 [2010 (261) E.L.T. 955 (Tri - Del.)] passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi.

(2.) The brief facts of the case are that the assessee is a manufacturer of Cement. It was found by the A.O. that the bags of cement were overweight, so he has levied the Excise Duty for extra cement packed in the bags and sold to the customers. Accordingly, the additions were made by the A.O. But the First Appellate Authority has deleted the said additions. Being aggrieved, the department has filed appeals in both the cases before the Tribunal, who vide its impugned common order dated 26-11-2008 set aside the order of the First Appellate Authority and restored the additions made by the A.O., but the said order was an ex-parte order as mentioned in the title of the order. However, inadvertently, in paragraph No. 2, it was mentioned by the Presiding officer that "I have heard both sides". Nonetheless fact remains that it was an ex-parte order. Thereafter, the assessee has moved recall applications No. 78 of 2009 and 79 of 2009 before the Tribunal but the same were rejected by the Tribunal vide its impugned order dated 3-12-2009. Being aggrieved, the assessee has filed the present writ petitions before this Hon'ble Court.

(3.) During the course of argument, Sri Ratnesh Chandra, learned counsel for the assessee submits that the notices sent by the Tribunal were received by the former Manager, whose services were already terminated. Thus, the notices were never served on the assessee company.