Court sets aside Order, remands for fresh consideration, directs examination of DGEP clarification, mandates personal hearing.

The Court allowed the Writ Appeal, setting aside the Order-in-Original dated 28.05.2015 and remanding the matter for fresh consideration. The Adjudicating Authority was directed to examine the applicability of the Directorate General of Export Promotion clarification dated 02.04.2008 to the case. The appellant's submission regarding the clarification was deemed crucial, leading to the decision for de novo adjudication. The respondent was instructed to provide a personal hearing to the appellant's representative, consider their submissions, and make a fresh decision in accordance with the law.

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Issues:
Challenge to Order-in-Original dated 28.05.2015 passed by the Commissioner of Central Excise - Relegation to avail alternative remedy - Applicability of Directorate General of Export Promotion clarification dated 02.04.2008 - Remand for de novo adjudication.

Analysis:

1. The writ petition challenged the Order-in-Original dated 28.05.2015 passed by the Commissioner of Central Excise. The Court noted that no counter affidavit was filed by the Department. When the writ petition was taken up for hearing on 11.12.2020, the Court opined that the appellant should avail alternative remedy, considering it a rule of discretion for Constitutional Courts. However, the Court acknowledged the harshness of relegate the party to avail the alternative remedy after several years of pending writ petitions, as seen in previous Supreme Court decisions.

2. The Court observed that no useful purpose would be served in directing the appellant to file an appeal before the Tribunal, especially when an argument made before the adjudicating authority could have wider ramifications. The Commissioner's order lacked a finding on whether the submission made by the appellant merits consideration or not. The appellant's submission regarding the Directorate General of Export Promotion clarification dated 02.04.2008 was highlighted, indicating its potential relevance to the case.

3. The Directorate General of Export Promotion clarification dated 02.04.2008 was deemed significant by the appellant's counsel. The clarification addressed the benefits of exemption notification under section 5A of the Central Excise Act for EOUs, emphasizing the applicability of exemptions for computation of duty on DTA clearances by EOUs. The Court considered this clarification crucial and directed the Adjudicating Authority to examine its applicability to the appellant's case, leading to the decision to remand the matter for de novo adjudication.

4. Consequently, the Writ Appeal was allowed, setting aside the Order-in-Original dated 28.05.2015 and remanding the matter back to the respondent for a fresh consideration. The respondent was instructed to afford an opportunity of personal hearing to the authorized representative of the appellant, consider their submission, and make a fresh decision on merits and in accordance with the law. No costs were awarded in this judgment, and the connected miscellaneous petition was closed.

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