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Judgment
A.H. Joshi, J.—Rule. Rule made returnable forthwith. Heard by consent of parties. The background of the petition can be summarized as follows:-
(a) The petitioner is running an industry engaged in manufacturing of Pan Masala, Gutka, etc.
(b) It has opted for Compounded Levy Scheme for payment of excise duty on the basis of its installed manufacturing capacity.
(c) The petitioner has pecuniary liability of around Rs. 17,11,77,419/- (Rupees Seventeen Crores Eleven Lakhs Seventy-seven Thousand Four Hundred Nineteen only), by the end of July, 2012 towards immediate preceding assessments apart from other liabilities.
(d) Due to change in policy by the Government of Maharashtra sometime in July, 2012, the petitioner had to suspend the activity of manufacturing Gutka, etc.
(e) The petitioner has some stock of pouches manufactured and kept ready for despatch, which, now, cannot be sold within the territory of State of Maharashtra.
(f) The petitioner has applied to the Respondent No. 2 by filing application dated 30th October, 2012, for remission of liability towards payment of excise duty towards goods, which now cannot be sold due to barrier of law.
(g) Petitioner''s application referred to above has been rejected by the impugned order dated 9th November, 2012.
(h) Petitioner is taking exception to the said order and claims re-hearing by dispensing with the alternate remedy.
Learned Advocate for respondents states that:-
(a) All actions are for antecedent, while the application for remission is of recent origin i.e. 30-10-2012. Therefore, there is no urgency of hearing the petition by dispensing with alternate remedy.
(b) The concession of remission does not apply to the cases where the assessee is liable to be governed by compounded levy of taxes u/s 3A of the Central Excise Act, 1944.
(c) Petitioner is a habitual defaulter.
(d) The application for remission is belated and came up only after seeing that now the coercive recovery is at the doorstep. The application for remission is therefore not bona fide and honest exercise.
(e) The question of remission is to be decided on the basis of record and it has been so considered.
(f) Petitioner has efficacious alternate remedy.
The writ petition is thus strongly opposed.
Petitioner''s claim for remission is liable to be considered on its own merits. For enabling the petitioner to address the authority i.e. Respondent No. 2 on merits, it was necessary that the petitioner should have been given an intimation of hearing. The impugned order, prima facie, appears to have been passed without any formal hearing.
Considering the fact that the rejection of remission would attract pecuniary liability hearing to the petitioner would have advanced the cause of justice.
Therefore, we had called upon Mrs. Bharaswadkar, Standing Counsel for the Respondent No. 5 to take instructions as to whether case could be relegated to the stage of hearing and for passing fresh order.
In response to the query by this Court, learned Advocate for respondents has taken instructions and, upon instructions, learned Advocate has fairly made a statement that there would be no impediment for giving fresh hearing and deciding the case in accordance with law by dealing with each and every point raised in the application for remission.
We accept the statement made by and on behalf of the Respondent No. 2. In the result, we set aside the impugned order dated 9-11-2012. The case be relegated to the stage of hearing. Learned Senior Advocate for petitioner states on instructions that service of notice of hearing is waived for which petitioner would appear before the authority on 6th February, 2013.
On the date of hearing, the petitioner shall be free and will be allowed to make additional submissions and tender evidence, if felt necessary.
We, therefore, direct that the application for remission "Annexure F" (Page No. 99) to the petition would be heard and decided by Respondent No. 2 after giving an opportunity of hearing to the petitioner on all points.
We make it clear that we have not done any adjudication about respective claims and contentions and all points are kept open. Rule made absolute in above terms with no orders as to costs.