By TIOL News Service

MUMBAI, MAY 05, 2016: THE fact of the case is that the appellant had purchased vehicles from M/s. Mercedes Benz on 24/2/2009. Duty was paid by the manufacturer supplier at the rate of 10% whereas on the same date Notification was issued by which rate of duty was reduced from 10% to 8%, therefore, there was excess payment of duty.

The appellant filed refund claim as the purchaser of the goods in respect of excess payment of duty, on 14/5/2009.

SCN was issued on 7/9/2009 proposing rejection of refund claim. In the said notice appellant was asked to reply within seven days and the dates of hearing were also fixed on 22/9/2009 to 24/9/2009.

Vide their letter dated 26/10/2009,appellant sought time till end of November 2009 for submission of their reply. Thereafter, again personal hearing was fixed on 27/28.10.2009 and the said notice was received on 26/10/2009. The appellant vide letter dated 27/10/2009 requested for further extension of three to four weeks.

A reply was filed on 18/11/2009 and Order-in-Original was passed on 30/11/2009.

As the appellant was not successful before the Commissioner (A), they are in CESTAT.

The appellant submitted that the o-in-o was passed in gross violation of principles of natural justice and sought a remand.

The Bench observed -

"6. I find that it is apparent from the proceedings that the Adjudicating authority has violated the principles of natural justice as firstly he has given seven days time to file the reply to the show cause notice and in the show cause notice itself he has fixed the date of personal hearing i.e. for 22/9/2009 to 24/9/2009. The appellant requested for time to present their case in writing vide their letter dated 26/10/2009 and 27/10/2009. It is also noted that the Personal hearing notice for 27/28/10/2009 was received by the appellant on 26/10/2009 therefore appellant has asked further time of personal hearing which was not granted by the Adjudicating authority. The appellant filed detailed reply which was acknowledged on 18/11/2009, this reply was not considered by the Adjudicating authority and passed the order in haste on 30/11/2009. From the above facts it is clear that Adjudicating authority was in too much hurry in passing the order, hence not considered the reply filed by the appellant nor given any further personal hearing…."

After setting aside the order, the matter was remanded to the Original Adjudicating authority for passing a fresh order within three months.

(See 2016-TIOL-1074-CESTAT-MUM)