LAWS(CE)-1999-8-88

WASON AND COMPANY Vs. COMMISSIONER OF C. EX.

Decided On August 31, 1999
Wason And Company Appellant
V/S
COMMISSIONER OF C. EX. Respondents

JUDGEMENT

(1.) MATTER called. None for the applicant. We, however, find that the notice of hearing in the stay petition has been issued by registered post on 17 -8 -1999. Therefore, we have proceeded to hear the learned JDR on the stay application filed by the applicants herein. The stay application prays for waiver of pre -deposit and stay of recovery of Rs. 28,955 / -as duty on 492 pairs of shoes which have been held to be not accounted for by the lower authorities out of the 1000 pairs of footwear cleared for export. Case of the applicant before the lower authorities was that after the clearances of the goods for export under bond in terms of Rule 13 of the Central Excise Rules the goods before being loaded for export at Custom House, New Delhi had to be kept in godown of a transport company. There was a fire accident in the godown of M/s. U.P. Punjab Transport Company at 3405, behind LIC Building, Asaf Ali Road, New Delhi where the goods were kept. The footwear which could be salvaged and brought back to the factory of the applicant have been taken to have been accounted for and the remaining goods have been considered unaccounted for. After issue of a show cause notice and submission of the reply of the appellants/applicants herein they had also made a request for hearing. In pursuance to that request, a date of hearing was fixed but the appellants asked for adjournment for some unavoidable reason. The adjournment had not been given by the adjudicating authority and the case was decided ex parte. On appeal before the Commissioner (Appeals) the appellants/applicants did not succeed. Hence this appeal before us.

(2.) IT has been urged in the appeal as -well as the stay application that the principles of natural justice have been violated and an order has been passed ex parte without fully considering the facts on record, as mentioned above. We also observe that there is no mention in the orders of both lower authorities that the fire accident did not take place in the godown of the transport company, as alleged by the applicant. In fact, the lower authorities have neither rebutted nor confirmed the fire accident. They have gone merely by the fact that whatever goods were brought back were accounted for but the remaining goods were unaccounted for. This, in our view, is not a correct approach while considering the application for remission under Clause (c) of proviso to Rule 14A of the Central Excise Rules, 1944. we are, therefore, of the view that the matter is fit for remand. Hence we set aside the impugned order and remand the matter for readjudication by the adjudicating authority.

(3.) SINCE the appeal itself has been disposed of, the stay application also gets disposed of.