Customs, Excise and Gold Tribunal - Delhi
Emery (India) Pvt. Ltd. vs Collector Of Central Excise on 11 March, 1986
Equivalent citations: 1989(20)ECC22, 1986(24)ELT371(TRI-DEL)
ORDER M. Gouri Shankar Murthy, Member (J)
1. From a perusal of the papers in this appeal it would appear that-
(a) the instant appeal was filed on 4-8-1983 against an order dated 7-5-1983 of the Collector (Appeals) remanding the matter to the adjudicating officer for a de novo consideration of a demand for payment of Rs. 3,31,748.29 confirmed by the said adjudicating officer earlier, in consequence of failure to indicate the exact basis "for arriving at the impugned prices in the show cause notice" and consequent violation of the principles of natural justice;
(b) in the appeal, it was specifically stated that no deposit of duty was made as the case had been remanded by the Collector (Appeals). Nevertheless, by a separate application, stay of operation of the order of the Collector (Appeals) dated 7-5-1983 was prayed for as well as a restraint upon the adjudicating officer from acting in furtherance of the said order of remand;
(c) the aforesaid application was heard and diposed of by an order of the Tribunal dated 9-2-1983. While declining to accede to the prayer for stay, the Tribunal adjourned the appeal sine die to await the de novo consideration of the case by the adjudicating officer as well as the order that may be made by the Collector (Appeals) in any appeal that may be preferred against it;
(d) the adjudicating officer on a reconsideration of the case after remand, passed another order in May 1984, reducing the demand to Rs. 14,488.20 (out of the original amount demanded in a sum of Rs. 3,31,748.29);
(e) an appeal against that order was decided by the order of the Collector (Appeals) dated 18-10-1985, entirely in favour of the appellant who was afforded full and complete relief when the order made on re-adjudication after remand as well as the demand were set aside;
(f) thereafter, the appellant moved an application in the instant appeal earlier adjourned sine die, praying for a decision "in relation to the remaining dispute regarding use of power in the manufacture of the appellant's product as discussed in para 39 of the grounds of appeal" in the instant appeal;
(g) pursuant to the aforesaid application, the appeal was fixed for hearing on 14-2-1986. The appellant did not appear on that day but requested that a memorandum of written submissions sent to the Tribunal may be taken into consideration in deciding the appeal. The appeal was then adjourned to 11-3-1986.
2. No one was present on 11-3-1986 as well. We have heard Shri Saha for the Respondent.
3. It is observed that-
(a) the question of the use of power in the manufacture of goods in question was incidental to an adjudication of the notice to show cause requiring payment of Rs. 3,31,748.29. One of the issues that arose in the adjudication was if there was a ''manufacture" with the use of power. This was an issue raised in defence against the demand for payment of duty amongst others like e.g. the bar of limitation;
(b) when a plurality of issues arise in any adjudication, it may be that some or all of them may be found against the assessee. Where all of the issues are decided against the assessee, the resulting order in adjudication is wholly against the case set up by him. The resulting order in adjudication is dependent on the question as to whether any of the issues decided against the assessee is crucial to the disposal of the case, where some issues alone are decided against the assessee. In other words, the resulting order in adjudication depends entirely on the finding given on any issue crucial for a decision of the case in part or wholly;
(c) an appeal is provided against an adverse order in adjudication and not against an adverse finding on any particular issue that may arise in the course of adjudication. It is not as if one can maintain an appeal against an adverse finding on any issue notwithstanding that the order in adjudication is wholly in favour of the assessee. There is no right of appeal issuewise;
(d) so also, if any appeal is decided wholly in favour of the appellant (assessee in this case), there is neither a right of further appeal nor survival of an appeal previously filed in relation to any particular issue that may have arisen earlier, notwithstanding that it had been left undecided. It is an adverse judgment that occasions the exercise of a right of appeal or sustains an appeal previously filed as in this case and not an adverse finding on any issue that may arise in the course of the proceedings;
(e) a decision in any legal proceeding is not an academic exercise for the determination of any issue that may have arisen therein, when the lis itself does not survive.
4. In the result, we hold that the instant appeal no longer survives. It is, accordingly, dismissed.