Customs, Excise and Gold Tribunal - Ahmedabad
Rajputana Steel Casting Pvt. Ltd. And ... vs C.C.E. on 3 March, 2008
Equivalent citations: 2008[10]S.T.R.444
ORDER Archana Wadhwa, Member (J)
1. The appellant is engaged in the manufacture of iron and steel products falling under Chapters 72 & 73 of Central Excise Tariff Act, 1985. They were issued a show cause notice on 10.7.98 alleging clandestine removal and proposing to confirm duty of Rs. 2,55,254/- and for denial of modvat credit of Rs. 1,56,668/-. On adjudication, the Joint Commissioner vide his order dated 23.3.99 disallowed the modvat credit, as proposed in the show cause notice and also imposed penalties on the appellant as also on the Director. Appeal against the above order was rejected by the Commissioner, Central Excise (Appeals) vide his order dated 13.10.2000. The said order was challenged by the appellants before the Tribunal. The said appeal was filed on various grounds and one of the ground was of jurisdiction wherein as per the CBE & C Circular, the show cause notice invoking larger period should be issued by the Commissioner and should be adjudicated by the Commissioner and in case of appellant the show cause noticed was issued by the Deputy Commissioner. However, while deciding the appeal the Hon'ble Tribunal has not considered this ground on merit but has stated that issue of jurisdiction is dismissed as not pressed and rejected the appeal of the appellant vide order No. C-IV/468-69/WZB/2004 dated 30.1.2004.
2. Being aggrieved by the said order, appellant instead of preferring ROM has preferred the excise appeal No. 462 of 2004 before Hon'ble High Court of Gujarat at Ahmedabad. The said appeal was heard by the Hon'ble High Court on 14.9.2004 and disposed of by directing the Tribunal to entertain the miscellaneous application of the appellant and consider the ground of jurisdiction which goes to the root of the matter vide order dated 14.9.04. The Hon'ble High Court also directed the Tribunal to condone the delay considering the fact that the appeal before the Hon'ble High Court is filed on time. Accordingly, appellant moved Miscellaneous Application No. 2313 of 2004 before the Hon'ble Tribunal along with the Condonation application on 29.9.04. The said application was heard by the Hon'ble Tribunal on 2.2.2005. After condoning the delay, the Hon'ble Tribunal has categorically held that since the adjudication has been done by the Joint Commissioner, the same is not as per the direction as contained in the said Circular and the miscellaneous application is liable to be allowed on the ground of jurisdiction and accordingly, the said order in original was set aside vide order No. M-60/WZB/2005/C-IV dated 2.2.2005.
3. Thereafter, the matter was taken up by the Commissioner, and the impugned order stands passed by him confirming duty and imposing penalty. The said order is impugned before me.
4. The appellant's contention is that earlier order having been set aside by the Tribunal without any direction to re-adjudicate the matter, the Commissioner having no jurisdiction to pass the impugned order in de novo proceedings, cannot confirm duty and penalty. On the other hand, it is the revenue's contention that the said order of the Tribunal observed that the matter should have been adjudicated by the Commissioner. As such, re-adjudication by the Commissioner is within his jurisdiction.
5. For better appreciation, I reproduce the Tribunal's order passed on miscellaneous application filed by the appellant.
3. The ld. Counsel contended that as per CBEC Circular No. 299/15/97-CX dated 27/2/97, since the show cause notice contains ground of fraud, willful mis-statement and suppression, the show cause notice should have been issued by the Commissioner and the case also adjudicated by him. The said Circular authorizes the Commissioner and the Additional Commissioner and not the Deputy Commissioner and the Joint Commissioner to issue the show cause notice and adjudicate the case. Since the adjudication has been done by the Joint Commissioner, the same is not as per the directions as contained in the said circular and the miscellaneous application is liable to be allowed on the ground of jurisdiction. I confine myself only to the ground of jurisdiction which was raised before the Hon'ble High Court and in view of the aforesaid circular, I am of the view that the case should have been adjudicated by the original authority at the level of Commissioner/Additional Commissioner. The miscellaneous application filed by the appellant is allowed to the above extent.
6. As is seen from the above, though the Tribunal has observed that the case should have been adjudicated by the Commissioner/Deputy Commissioner, there are no such directions to re-adjudicate, in the said order of the Tribunal. The application praying for setting aside the impugned orders passed earlier stands allowed by the Tribunal without any direction of remand. I find that an identical situation was considered by the Hon'ble Madras High Court in the case of Collector of Central Excise, Madras v. V.K. Palappa Nadar 2000 (123) ELT 14 (Mad.). The order passed by the Central Board of Revenue vacating the impugned order, without prejudice to the merits of the case was held as not being a remand order. It was observed in para 6 of the said judgment that Section 35 of Central Excise Act is a self-contained set of rules. The appellate authority has got powers to confirm, alter, annul or remand the matter. However, the order passed in appeal shall be final subject to the power of revision. The Appellate Tribunal has been given powers of the widest character, which will include the power of remand. Finality is also attached to the order of the Appellate Tribunal. This would clearly show that, after disposal of the matter by the Appellate Tribunal, jurisdiction can be revived in the original Tribunal only if there are specific direction in the Appellate order to that effect. If the Appellate order merely annuls the original order without containing any other direction, there shall be no power in the original authority to ensure de novo proceeding. Accordingly, the Hon'ble High Court observed in para 8 is as under:
8. Taking up the first point we agree with the view of the learned Judge that the italicised words, "without prejudice to the merits of the case" cannot be construed as equivalent to conferment on the Collector of Central Excise jurisdiction to make a de novo enquiry. The italicised words can mean only that the appellate authority had not gone into the merits of the case, but has disposed of the matter on a preliminary ground. The preliminary ground may embrace a diversity of reasons. It may be one of lack of jurisdiction in the original Tribunal; it may be one of limitation, or it may be one of a defect of procedure, going to the very root of the decision. On one or more of these preliminary grounds, a decision allowing an appeal, without going into the merits, can be given by an appellate quasi-judicial Tribunal. Therefore by reason of the disposal in this case, without going into the merits, it will not be proper to spell out an order of remand. We cannot also go into any collateral circumstances, to interpret the terms of the appellate order. The terms of the appellate order are, in our opinion, not sufficient for being construed as amounting to an order of remand.
6. By applying the ratio of the law declared by the Hon'ble High Court, it is seen that the Tribunal's order only adopts the reasoning of the impugned order not having been adjudicated by the proper officer, for the purpose of setting aside the impugned order. There is no clear direction to the Commissioner to adjudicate the matter afresh. Once the impugned order is set aside unconditionally, the Commissioner, in my view, was not right in reopening the proceedings to re-decide the matter afresh in the absence of any direction to the contrary. The observations made by the Tribunal to the effect that "the case should have been adjudicated by the original adjudicating authority at the level of Commissioner/Deputy Commissioner" cannot be interpreted or construed as a direction to the Commissioner to decide the case afresh. The same, at best, is the reasoning adopted by the Tribunal for setting aside the impugned order.
7. The learned SDR has submitted that the earlier Board's Circular dated 27.2.97 which has been made the basis by the Hon'ble High Court for remanding the matter to the Tribunal for consideration of the jurisdiction of the stand superceded by the subsequent Circular of the Board dated 13.8.97. As such, the Joint Commissioner was competent to adjudicate the matter. However, I find that the said issue is not before me in the present proceeding, having been concluded by the earlier order of the Hon'ble Gujarat High Court as also of the Tribunal. Whether Joint Commissioner was competent to adjudicate or not in view of the subsequent Board Circular was the subject-matter of the earlier proceedings, which stand adjudicated against the revenue and cannot be reopened in the present proceeding.
In view of above discussions, I set aside the impugned order having been passed without jurisdiction and allow the appeals with consequential relief to the appellants.
(Pronounced in the open Court on 3.3.2008)