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Judgment
Rule. Heard forthwith.
The petitioners are before the Settlement Commissioner. An order came to be passed on 25th February, 2008. That was a subject matter of a petition before this Court. By an order dated 14th August, 2008, the order of the Commissioner was set aside and the matter remanded back to the Commissioner for deciding the issue de novo.
On remand, the parties were heard on 14th October, 2008. Thereafter both the petitioners and the Revenue had a meeting on 22nd December, 2008. The impugned order thereafter came to be passed on 29th June, 2009.
The petitioners have raised various contentions. However, we propose to decide two of the contentions raised before us. The first contention raised by the petitioners is that the order of the Commissioner in para 5 discloses that the Revenue has submitted the report on 9th February, 2009. The grievance is that this report was not made available to the petitioners and as such the order suffers from violation of principles of natural justice and fair play.
It appears that the petitioners herein had given their report on 31st December, 2008 based upon which the Revenue had submitted their report on 9th February, 2009. This may not be a report after admission of the application, but nonetheless it would be relevant material more so as subsequent paragraph of the order of the Commissioner would disclose that it has been relied upon. Therefore, considering the report of 9th February, 2009, without giving an opportunity to the petitioners to consider the same, was in violation of principles of natural justice and fair play. It is submitted that on this count alone, the impugned order is liable to be set aside.
The next submission on behalf of the petitioners is that penal interest u/s 11AB of the Central Excise Act could not have been due since the section was introduced in the Act with effect from 28th September 1996 and as such no interest was payable. Without considering this aspect, it is submitted that the Commissioner has directed payment of interest. On that count also, the order is liable to be set aside.
In our opinion, after hearing the parties and considering the facts and circumstances of the case, the impugned order dated 29th June, 2009 is liable to be set aside with the following directions.
(a) The Commissioner to make available to the petitioners a copy of the report dated 9th February, 2009. If the petitioners'' report of 31st December, 2008 has not been made available, the Commissioner to send a copy of that report also to the Revenue.
(b) It would be open to the petitioners to give their say on the report of 9th February, 2009. If the petitioners file any reply to the report dated 9th February, 2009, the Commissioner to hear the petitioners and the respondents and thereafter proceed to dispose of the matter after considering each of the assessment years in question and not for one assessment year as considered in the impugned order.
(c) The issue of interest payable be decided considering in mind that Section 11AB of the Central Excise Act came to be introduced with effect from 28th September, 1996.
(d) Considering that the matter is old, the Commissioner to dispose of the application within 12 weeks from the date of receipt of this order.
(e) Rule is made absolute as above with no order as to costs.