ROSA SUGAR WORKS Vs. CCE, LUCKNOW

JUDGEMENT

(1.) FOR reasons which will be apparent hereinafter, I allow the present application unconditionally and take up the appeal itself for final disposal.

(2.) THE appellants are manufacturers of sugar and molasses. Shortages of molasses in their tank were detected by the Department and, on that basis, show -cause notices (SCNs) were issued to the appellants demanding duty of excise on such quantities of molasses alleging clandestine removal. Those SCNs are still pending for adjudication. Meanwhile, the appellants themselves had filed Remission application under Rule 49 of the Central Excise Rules, 1944 with the Department. Those applications were six in number corresponding to the periods covered by the six SCNs aforesaid. The Commissioner, who ought to have decided on the Remission application under Rule 49 ibid after hearing the applicants, did not offer any personal hearing to them. While the aforesaid SCNs demanding a total amount of duty of Rs.2,61,957.00 were still pending with the Department, the appellants received letter dated 01/03.11.2000 of the Additional Commissioner (Tech), Central Excise, Lucknow initmating that their Remission applications had been rejected by the Commissioner mainly on the ground of delay and directing that the aforesaid amount of duty be deposited forthwith. In the present appeal, the Commissioner's decision as communicated to the appellants through the Additional Commissioner's letter is under challenge.

(3.) EXAMINED the records and heard both sides. Ld. Advocate Shri Bipin Garg submits that the decision of the Commissioner as communicated through the above letter of the Additional Commissioner is contrary to the mandate of Rule 49 as well as in violation of the principles of natural justice. He, further, submits that, when the demand notices based on the very subject matter of this appeal were pending for adjudication, there was no warrant for the Commissioner to raise the very same demand of duty on the appellants by way of disposing of the Remission application. These submission of ld. Counsel are acceptable in toto. Ld. SDR A.K. Jain is not averse to a remand of the matter. As rightly submitted by the Counsel, a Remission application filed under Rule 49 requires to be disposed of by the Commissioner himself and, that too, by an order in writing. The Additional Commissioner's letter is, by no stretch of imagination, to be treated as an order of the Commissioner in writing in terms of the Rule. Further, the appellants were not heard by the Commissioner before taking decision. Apart from this, a demand of duty as raised in the Additional Commissioner's letter was uncalled for, when the demand notices which were issued by the Department for the same amount of duty were still pending with them for adjudication. I, therefore, set aside the proceedings covered by the Additional Commissioner's letter and allow this appeal by way of remand. The Commissioner of Central Excise shall dispose of the Remission application by way of a speaking order in writing in terms of Rule 49, after affording a reasonable opportunity of personal hearing to the appellants. (Dictated and pronounced in open Court.)