CLUTCH AUTO LTD. Vs. CCE, DELHI

JUDGEMENT

(1.) HAVING carefully examined the records and heard both sides, I find that this is a fit case for final disposal at this stage. Therefore, I allow the present application and proceed to dispose of the appeal itself finally.

(2.) THE appellants had taken modvat credit on inputs to the extent of Rs. 43,943/ - on the strength of invoices issued by dealers. The credit so taken was disallowed by adjudicating authority. The assessee preferred appeal to the Commissioner (Appeals). The lower appellate authority upheld the order of the adjudicating authority upheld the order of the adjudicating as per order dated 27.6.2000. Hence the present appeal before the Tribunal.

(3.) LD . Advocate, Sh. D.K. Tyagi for the appellants, reiterating the grounds of the appeal, submits that 1d. Commissioner (Appeals) passed the impugned order without affording a reasonable opportunity of personal hearing to the appellants. I have noted from the impugned order that two opportunities were given to the appellants for being heard, firstly on 16.5.2000 and secondly on 26.6.2000. The appellant's case now put forward by 1d. Counsel is that, on 26.6.2000, 1d. Commissioner (Appeals) was on leave and on that day their Consultant Sh. Pradeep Jain also unable to appear, but an application for adjournment of hearing on such ground was submitted to the office of the Commissioner (Appeals) on the same day. a copy of the said application is available on record, which shows the office seal dated 26.6.2000 or the Commissioner (Appeals) evidencing receipt of the application by that office on that day. The order of the lower appellate authority does not disclose as to whether any further does not disclose as to whether any further opportunity of hearing was granted to the assessees as requested by them in their application dated 26.6.2000. Therefore, it appears that the proceedings of the 1d. Commissioner (Appeals) are vitiated by breach of natural justice, and, therefore, her order cannot be sustained. Therefore, without going into the merits of the matter, Ii set aside the impugned order and allow the present appeal by way of remand directing the Commissioner (Appeals) to pass a fresh speaking order in the matter [subject to compliance, by the appellants, with the condition stated hereinafter] after affording a reasonable opportunity to the appellants for being heard. Having regard to the facts and circumstances borne or record as also to the fact that no plea of financial hardships has been raised by the party, I direct the appellants to deposit an amount of Rs. 20,000/ - with the lower appellate authority within a period of four weeks from today by way of compliance with the provisions of Section 35F of the Central excise act for hearing of the appeal on merits.