EMCO LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule Returnable forthwith. By consent of counsel, the petition is taken up for final disposal. By this petition under Article 226 of the Constitution, the Petitioner has challenged the order dated 31 July, 2013 passed by the Additional Commissioner of Central Excise. By the impugned order dated 31 July, 2013, a demand of duty of Rs. 4,09,455/- has been confirmed under Section 11A(2) of the Central Excise Act, 1944 ('Act') and an equivalent penalty has also been imposed under Section 173Q(bb) of the Central Excise Rules, 1944 ('Rules').

(2.) The grievance of the Petitioner is that the impugned order was passed almost nine months after the conclusion of the hearing. This delay in passing the impugned order, the Petitioner submits, has led to serious prejudice to it. This is so as the impugned order does not discuss and/or consider the various submissions made by the Petitioner during the hearing leading to a demand which itself is not sustainable. Our attention was particularly drawn to an application for additional grounds made before the Tribunal on 18 January, 2010, which was a part of the proceedings before the Adjudicating Authority. In this application, evidence is annexed of the fact that goods sent to job workers were received back within 180 days. However, the same was not taken into account while confirming the notice and imposing the penalty. The Petitioner submits that the Central Board of Excise and Customs has itself issued circular dated 5 August, 2003 directing the authorities under the Act to issue orders expeditiously after conclusion of hearing and not beyond a period of fifteen days. He also places reliance on the decision of this Court in Shivsagar Veg. Restaurant v. Assistant Commissioner of Income Tax, Mumbai, 2008 232 ELT 780 and the decision of Apex Court in the matter of Anil Rai v. State of Bihar,2009 233 ELT 13. In the above view, the learned counsel for the Petitioner states that the impugned order dated 31 July, 2013 be set aside and the Adjudicating Authority be directed to pass a fresh order after giving a personal hearing to the Petitioner.

(3.) As against this, the learned counsel for Revenue submits that the impugned order dated 31 July, 2013 is well considered order and no prejudice has been caused to the Petitioner on account of delay in passing the impugned order by the Adjudicating Authority. Besides, it is submitted that the Petitioner has a remedy of preferring an appeal under the Act against the impugned order. Therefore, the petition be dismissed.