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Judgment
Dr. Satish Chandra, J.—Both the writ petitions have been filed by the assessee against the orders dated 26-11-2008 [2009 (237) E.L.T. 511 (Tribunal)] and 3-12-2009 [2010 (261) E.L.T. 955 (Tri - Del.)] passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi.
The brief facts of the case are that the assessee is a manufacturer of Cement. It was found by the A.O. that the bags of cement were overweight, so he has levied the Excise Duty for extra cement packed in the bags and sold to the customers. Accordingly, the additions were made by the A.O. But the First Appellate Authority has deleted the said additions. Being aggrieved, the department has filed appeals in both the cases before the Tribunal, who vide its impugned common order dated 26-11-2008 set aside the order of the First Appellate Authority and restored the additions made by the A.O., but the said order was an ex-parte order as mentioned in the title of the order. However, inadvertently, in paragraph No. 2, it was mentioned by the Presiding officer that "I have heard both sides". Nonetheless fact remains that it was an ex-parte order. Thereafter, the assessee has moved recall applications No. 78 of 2009 and 79 of 2009 before the Tribunal but the same were rejected by the Tribunal vide its impugned order dated 3-12-2009. Being aggrieved, the assessee has filed the present writ petitions before this Hon''ble Court.
During the course of argument, Sri Ratnesh Chandra, learned counsel for the assessee submits that the notices sent by the Tribunal were received by the former Manager, whose services were already terminated. Thus, the notices were never served on the assessee company.
On the other hand, Sri K.D. Nag, learned counsel for the department submits that the assessee never informed the department about the termination of the services of the Manager.
By considering the rival submissions and on perusal of the record, it appears that the impugned order dated 26-11-2008 was passed ex-parte as the notices were not received by the assessee-company but the same were received by the former Manager, whose services were already terminated. This is the violation of the principles of natural justice as per the doctrine of Audi Alterm Partem. Further, the notice will have to serve in a proper manner as per the ratio laid down in the following cases :
(1) Safari Mercantile (P) Ltd. Vs. Income Tax Appellate Tribunal and Others,
(2) Commissioner of Income Tax Vs. Bhan Textiles P. Ltd.,
This aspect was not considered by the Tribunal in its order dated 3-12-2009 when the assessee has moved recall applications.
In view of above, I set aside both the impugned orders passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi and restored the matter back to the Tribunal to decide the appeals filed by the department de novo but by providing reasonable opportunity to the assessee. If the assessee will not cooperate in the proceedings, then the appeals will be decided as per law.
Both the writ petitions are disposed of accordingly.