Hans Metal Pvt. Ltd. vs Union of India (UOI)

Bharati Sapuru, J.—Heard learned Counsel for the petitioner and the learned Senior Counsel for the Union of India, Sri. Zafar Munis.

This writ petition has been filed against an order passed by the Commissioner (Appeals), dated 16-9-2009, in which he has taken a view mat the appeal filed by the petitioner was delayed beyond 60 days and therefore, he did not have the power to condone the delay made in filing the appeal.

The view as taken by the Commissioner in so far as the provisions of Section 35 of the Central Excise Act is concerned, is correct. However, the learned Counsel for the petitioner has argued that the order dated 14-1-2009, i.e. the order imposing penalty on the petitioner is without any basis on account of the fact that officer imposing the penalty has recorded that there was no doubt in his mind that the petitioner had avoided to pay the tax of Rs. 2,00,000/- and odd by removing the goods in a clandestine manner. He has also argued that the finding is recorded simply on the basis of the presumption and there was no material before the adjudicating authority to establish his finding. The other part of the case is that one of the Directors of the Private Company was suffered from a terminal disease and ultimately succumbed to it. The certificate of the hospital was also brought on record by the other Director who was assisting to other Director.

Since the order imposing, the penalty is without any basis, it is only appropriate that the matter be remanded to the assessing authority to give reasons for coming to the conclusion that he has. I accordingly remand the matter to the assessing authority who will decide the matter within three months from the date of the production of a certified copy of this order, in accordance with law. He shall give to the petitioner an opportunity of hearing. With the aforesaid direction the writ petition is disposed of.