Customs, Excise and Gold Tribunal - Mumbai
Godrej And Boyce Mfg. Co. Ltd. vs Commissioner Of C. Ex. on 7 October, 1999
Equivalent citations: 2000(115)ELT408(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. After hearing Shri A. Hidayatullah, learned senior counsel, on the stay application, it appeared that at this stage itself the appeal could be taken up for disposal. Both sides agreeing, this was done after granting stay and waiver of the duty amounting to Rs. 4,95,977.10.
2. The appellants had cleared certain dutiable articles without payment of duty for supply to units under the 100% EOU and SEEPZ in terms of certain notifications on the strength of certificates issued by the jurisdictional Central Excise officers. Later, 43 show cause notices were issued seeking to recover the duty leviable on denial of the benefit of the notification on the ground that the recipient units had not used the goods for the purposes stated in the notification. The assessees filed replies and appeared before the Assistant Commissioner. The Assistant Commissioner relying upon the ratio of the Tribunal's order in Appeal No. E/99/96-B, dated 11-3-1996 dropped the demands made under those show cause notices. It appears that the jurisdictional Commissioner caused an application to be made before the Commissioner (Appeals) for reconsideration of the orders of the Assistant Commissioner. In the impugned order the Commissioner after narrating the facts leading to the appeal before him held as follows:-
"On careful consideration of the appeal, I find substantial force in the grounds of the appeal I, therefore, set aside the impugned order and remand the case for de novo decision. The appeal is accordingly allowed."
3. Shri Hidayatullah states that the copy of the Commissioner's application before the Commissioner (Appeals) was never served on the assessees. It is his further statement that the Commissioner did not direct them for a hearing. On an examination of the Commissioner's impugned order we find no mention therein of the assessees having been summoned for a hearing although their interests were involved. We further find that the Commissioner has not discussed the issues involved in the proceedings before him. The cryptic order passed by him therefore has to be held as one made without application of mind. This is all the more so because in the proceedings before the Assistant Commissioner certain orders of the CEGAT was cited in pursuance of which the Assistant Commissioner had dropped the demands. In reversing that order it was necessary for the Commissioner (Appeals) to state as to in what circumstances he was not inclined to follow the judgment of superior appellate authority. In not doing so he had shown disregard for the need to follow the judicial precedent. Shri Hidayatullah submits that the issue has been further settled by other judgments of the Tribunal and would like us to decide the issue on merits. We are not inclined to do so. A functionary who has been entrusted with certain functions is required to discharge that function. If the Commissioner (Appeals) continued to pass such cryptic order in the belief and knowledge that the Tribunal would on appeal go into the merits and decide the issue, such tendency may perpetuate. On this ground we deem it proper to set aside the order and remand the proceedings back to the Commissioner (Appeals). He shall first ensure that the copy of the application made by the jurisdictional Commissioner before him is made available to the assessee. He shall thereafter direct the assessees to appear before him and then pass a well reasoned speaking order on the various issues. Ordered accordingly.