Welspun Maxsteel Ltd. vs The Commissioner of Central Excise

An application for stay was made by the appellant-assessee before the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. That was to seek waiver of the condition of pre-deposit and stay of recovery pending disposal of the statutory Appeal. That application was placed before the Tribunal on 7th April, 2014 but the Tribunal found that the appellant-assessee and his advocate are absent thought aware of the date of the hearing. Therefore, it proceeded to decide the application on merits in the absence of the appellant and their advocate.

Mr. Sreedharan would submit that there are several issues and aspects of the controversy and which could have been pointed out to the Tribunal and if the Tribunal had given one more opportunity to the appellant to argue these applications. The appellant could have very well pointed out that in the appellant''s own case on prior occasions the Tribunal has protected the appellant by waiving the condition of predeposit and granted complete waiver and stay of recovery. In these circumstances, the prejudice caused is immense because now the Tribunal has imposed a condition on the appellant and that too in its absence of deposit of the entire sum as demanded by the Commissioner of Central Excise, Customs and Service Tax, Raigad in the Order-in-Original dated 17th November, 2013.

Mr. Jetly appearing on behalf of the Revenue would submit that it was incumbent upon the appellant or their Advocate to have remained present after the notice was served. It was for the appellant to have sought relief and in terms of the application made. In such circumstances the Tribunal was not obliged to grant any further adjournments and it had no alternative but to proceed and pass an order on the merits of the application. In such circumstances, the complaint of lack of opportunity has no merit and the appeal raises no substantial question of law but it must be dismissed.

The Appeal raises the following substantial question of law. It is accordingly admitted on the following question :

[i] Whether in the facts and circumstances of the case, impugned order has been passed in violation of principles of natural justice? 5. By consent of parties, the Appeal is heard finally.

We have with the assistance of Mr. Sreedharan and Mr. Jetly perused the impugned order. To be fair to Mr. Sreedharan he had in alternative urged that on merits as well he will able to satisfy this Court that the order was not just, fair and proper. However, we find from a reading of the impugned order that the application was placed before the Tribunal on 7th April, 2014. On that date the appellant and the Advocate were absent. It may be that it was the first date but since there was prior notice the appellant and which is a limited company could have made arrangements for its representation so also informed its Advocate if there was no such intimation or notice received by the Advocate. Be that as it may, the Tribunal has passed such a detailed order considering the contents of the application and on merits, that we feel that larger interest of justice would be served if looking into the facts and circumstances peculiar to the present case, that a fresh opportunity is afforded to the appellants, we set aside the order of the Tribunal only on the ground that the appellant deserves an opportunity to reargue the application. We are of the view that without laying down a general rule or a precedent but only in the facts and circumstances of the present case that we can adopt such a course where prima facie nexus would have to be established with the service of bringing in raw materials and for purposes of production of goods in the appellant''s factory and their ultimate removal and whether on such an activity can credit be claimed and styling the same as input services are matters and given the effect of the rule which has been reproduced in the Tribunal''s order would enable us to set aside the impugned order and restore the applications to the file of the Tribunal. The Tribunal shall give an opportunity to both sides to raise their contentions and thereafter pass a fresh order. While passing the same the Tribunal should not influence itself by its earlier conclusions or observations.

Since we do not wish to give the appellant and their Advocate any further chance for making a complaint of the above nature, we deem it fit and proper and further in the facts of the present case to fix a date of appearance of parties and their Advocate before the Tribunal. The parties and their Advocate shall appear before the Tribunal on 24th February, 2015 at 10:30 a.m. and thereafter the Tribunal shall take up these applications and pass a fresh order. Needless to say that no further opportunity shall be given to the parties. This Central Excise Appeal is disposed of in above terms. No costs.