Full Judgment
2. The appellants are engaged in the manufacture of Ceramic tiles falling under Chapter heading 6906.10 of the Central Excise Tariff Act.
They were also availing Modvat credit.
3. Sometime in October, 1997, the officers of the Department carried out physical verification. The verification was started, according to the ld. counsel, at 5 p.m. continued till 5 a.m. on the following day.
The checks were carried out by the officers without sufficient help from the workers of the factory in a poorly illuminated condition. The bonded store room which was used for storage of material had several stocks of more than 60,000 sq. m. of tiles. Shri J.C. Patel, the ld.counsel vehemently argues that the verification of the stock could never have been done in such a short time of 12 hours in respect of such huge quantity especially when the place was not lighted in a proper way and without any manual help. He states that at one particular point of time, the department claimed that there were short levy. Later, the department changed into the excess and shortages. Shri Patel states that there was no worksheet prepared by the department duly countersigned by the assessees as to how the department came to know excess and shortages. He further states that he challenged what is contained in the panchanama. It is further contended that one of the panch witnesses did not turn up and the other panch witness cross examined by the appellants has blankly denied being present at the time of checks and he signed the panchanama at 6 a.m. on the following day.
4. Shri Patel states that in disposing of the stay application, the ld.Commissioner (Appeals) had failed to take note of the veracity of the above arguments and failed to take note of what is contained in the modification application filed by them.
5. Shri Choubey points out that the Commissioner (Appeals) has considered all the arguments in disposing of the stay application. When the party himself has agreed to pay the duty which is reflected in the order at pages 106 and 107 what more is required to be considered. All the above arguments are only of academic nature.
6. I have considered the interesting arguments. When I confronted with the situation on this count, I asked a query to Sri J.C. Patel that there was any admission on the part of the assessee to pay the duty as reflected in the order dated 6-12-99, he stated on instruction that no such agreement was made. Be that as it may, we have been coming across these types of orders passed by the Commissioner (Appeals) in disposing of the application for waiver of pre-deposit. In the judgment of the Supreme Court in Jesus Sales Corporation [1996 (83) E.L.T. 486] it is observed that such waiver application can be considered by the authority without hearing the applicant personally. But the same judgment was considered by the Gujarat High Court in the case of Ricoh India, 1999 (34) RLT 231 (Guj) where the Court held that the applicant has to be heard personally. The modification application which was filed has not yet been disposed of. Without considering the same, the Commissioner has dismissed the appeal without hearing the appellants. I feel that the Commissioner could not have disposed of the appeal itself without hearing the appellant. It is one thing for the Commissioner (Appeals) to dispose of they stay application without hearing the appellants. But he cannot dispose of the appeal without hearing the appellants. What Supreme Court judgment says is that when the authority passes an order after considering all the material before him, in such an event a personal hearing need not be given. Here all the materials have not been seen by the authority as reflected in the order dated 6-12-99. Shri Choubey's argument is interesting that when the person agrees to pay the duty why should the Commissioner hear personally and dispose of the matter. Shri J.C. Patel objects to it and submits that there was no such agreement. In these circumstances, when there is an element of doubt, the Appellate Authority ought to have heard the person in respect of the application dated 30-12-99 (page 108) of the paper book). I am fortified by the decision of the Gujarat High Court in the case of Ricoh India supra. I, therefore, set aside the impugned order and remand the case back to the Commissioner (Appeals) to hear the appellants in respect of the modification application filed on 30-12-99 and dispose of the matter in accordance with law. In view thereof, the stay application also stand disposed of.