Full Judgment
1. Shri Naveen Mullick arguing for the appellants submits that apart from the merits of the case, the order suffers from denial of principles of natural justice, inasmuch as no show cause notice was issued nor personal hearing granted. He drew our attention to Rule 233A of the Central Excise Rules, 1944 which reads as under :- "Rule 233A. No order confiscating any property, or imposing any penalty on any person shall be made under these rules, unless - (a) a written notice stating the grounds on which it is proposed to confiscate such property or to impose such penalty; and (b) a reasonable opportunity of making a representation in writing within such time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein and of being heard in the matter;" 2. He contended that sow cause notice is a must before imposing penalty and in the instant case since the penalty has been imposed, the question of waiver does not arise. He also contended that show cause notice is mandatory for confirmation of duty as well as for imposing penalty. It is true that the party has written a letter to the Superintendent waiving the show cause notice. Since the Rule is mandatory in issuing a show cause notice, it was the bounden duty of the concerned officer to issue notice and to grant an opportunity of hearing before passing the order. In this context, he heavily relied upon the decision of the Tribunal in the case of Saphai Saw Mills and Veneer Unit v. Commissioner of Central Excise, Shillong 1997 (20) RLT 64. In that case it was held that even though the appellants expressed willing to pay duty without show cause notice, the order suffers from principles of natural justice, since it was the duty of the officer to issue a notice before imposition of penalty.
3. Heard Shri Shiv Kumar learned JDR who has no objection to the remand of the matter.
4. On going through the facts and circumstances and relevant provision of Rule 233A, we find that there is some force in the arguments advanced on behalf of the assessee that irrespective of the waiver it was the bounden duty of the officer to issue show cause notice since issue of show cause notice is mandatory under the provisions of the Act. In these circumstances, we are remanding the matter to the jurisdictional Commissioner to decide the issue afresh after issuing show cause notice and an opportunity of hearing to the party and to pass an order accordingly. Thus this appeal is disposed of in the above terms.