Appealability of departmental communication fails, but fairness required a fresh hearing and a reasoned order.

A departmental communication approved by the Commissioner was treated as a communicated decision, not as an adjudication order passed by the Commissioner in his adjudicating capacity, so an appeal under Section 35B of the Central Excise Act, 1944 was not maintainable. As the issue affected recurring fiscal liability and the assessee had not been heard before the departmental view was finalised, fairness required a fresh hearing. The matter was therefore remitted to the Commissioner to consider the representation and pass a speaking order.

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Issues: Whether the communication issued by the departmental authority was an appealable adjudication order under Section 35B of the Central Excise Act, 1944, and whether the matter required a fresh hearing and a speaking order.

Analysis: The communication was treated as a decision communicated with approval of the Commissioner, but not as an adjudication order passed by the Commissioner in his capacity as an adjudicating authority. On that footing, an appeal under Section 35B was held not maintainable against such a communication. At the same time, because the matter affected recurring fiscal liability and the assessee had not been heard before the departmental view was finalized, fairness required that the Commissioner hear the assessee and issue a reasoned order after considering the representation.

Conclusion: The appeal was not maintainable as filed, and the dispute was sent back for fresh consideration by the Commissioner with a speaking order after hearing the assessee.

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