Gujarat High Court
Garden Silk Mills Ltd (Pfy Division) & vs Union Of India & 2 on 30 June, 2015
Author: A.J.Desai
Bench: A.J.Desai, A.G.Uraizee
C/SCA/2153/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2153 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GARDEN SILK MILLS LTD (PFY DIVISION) & 1....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR PARESH M DAVE, ADVOCATE for the Petitioners
MR RJ OZA, ADVOCATE for the Respondents
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 30/06/2015
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C/SCA/2153/2015 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J.DESAI) 1 RULE. Mr. R.J. Oza, learned Advocate, waives service of notice of Rule on behalf of the respondents. With the consent of the learned Advocates appearing for the parties, the matter is taken up for final hearing today itself.
2 By way of the present petition under Articles 14, 19(1)(g), 265, 300A and read with Article 226 of the Constitution of India, the petitioner has prayed as under:
(A) That Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside Order No. A/12058-
12059/2014 dated 27.11.2014 (Annexure-"L") passed by the Appellate Tribunal in Appeal Nos. E/10295-10296/2013-DB;
(B) That Your Lordships may be pleased to issue a writ
of mandamus or any other appropriate writ,
direction or order directing the Appellate Tribunal to decide Appeal Nos. E/10295-10296/2013-DB on merits by rendering a final order deciding the issues involved and grounds raised in the appeals;
(C) Pending hearing and final disposal of the present
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C/SCA/2153/2015 JUDGMENT
petition, Your Lordships may be pleased to restrain the respondent No.3 from taking any action of adjudication in pursuance of Order No.A/12058-
12059/2014 dated 27.11.2014 passed by the Appellate Tribunal thereby staying implementation and execution of this final order dated 27.11.2015 (Annexure-L);
(D) An exparte add interim relief in terms of Para 23(C) above may kindly be granted;
(E) Any other and further relief that may be deemed fit in the facts and circumstances of the case may also please be granted."
3 Brief facts arise from the record are as under:
3.1 That the petitioner, which is being registered under the Companies Act, 1956, is in the business of manufacturing of its own products which are as under:
3.2 That the Commissioner, Central Excise, Customs and Service Tax, Surat-I, by its Order dated 28.9.2012, disallowed certain Cenvat Credits claimed by the petitioner company. The said decision was challenged by the petitioner by way of filing an appeal before the Customs , Excise and Service Tax Appellate Tribunal, Western Division at Ahmedabad. The matter was heard on 26.08.2014, however, the same was decided on 27.11.2014. By the said order, the Tribunal remanded Page 3 of 6 C/SCA/2153/2015 JUDGMENT the matter on the basis of it's own decision dated 27.10.2014 with regard to other group of appeals. Hence, this petition. 4 Mr. Paresh M. Dave, learned Advocate, appearing for the petitioners, would submit that, though, the matter was heard on 26.8.2014, the decision has been rendered after about three months.
The petitioner was not aware about the order dated 27.10.2014 passed by the Tribunal itself which has been relied at the time of remanding the matter. He would submit that the case of the petitioner is different than the case decided by the Tribunal on 27/10/2014. The petitioner has no opportunity to make any submission with regard to the decision relied on by the Tribunal and, therefore, it is a breach of principle of natural justice. He would submit that the petitioner ought to have been heard by the Tribunal before passing the impugned decision, to plead his case and particularly with regard to the ratio laid down by the Tribunal itself about the applicability in the case of the petitioner. 6 Mr. Paresh M. Dave, learned Advocate, would further submit that even the Tribunal has remanded the case but has specifically observed that the authority has to deal with the case keeping in mind the views expressed by the Tribunal in its final order dated 27.10.2014. He would, therefore, submit that the order impugned in Page 4 of 6 C/SCA/2153/2015 JUDGMENT the petition be quashed and set aside and the matter be remanded to the Tribunal for fresh consideration.
7 On the other hand, learned Senior Counsel Mr. R.J. Oza, appearing for the petitioner, would submit that the case of the petitioner is similar to the case which has been decided by the Tribunal on 27.10.2014. He would further submit that even otherwise, the case is remanded for fresh adjudication and no interference is warranted under Article 226 of the Constitution.
8 We have heard learned counsel appearing for the parties. It is an undisputed fact that the appeal preferred by the petitioner was finally heard on 26.8.2014 and the same is decided on 27.11.2014. If the impugned judgment and order is perused, it emerges that the Tribunal has relied upon its own decision dated 27.10.2014. It is equally true that the petitioners had no opportunity to plead their case before the Tribunal whether his case is covered as per the Tribunal's decision dated 27.7.2014 or not. Therefore, in our considered view, the Appellate Tribunal ought to have given an opportunity of hearing to the petitioner before deciding the matter when the Tribunal has relied on its subsequent decision.
9 Hence, the petition is accepted. Judgment and order dated
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27.11.2014 passed by the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad, in Appeal No. E/10295-10296/2013-DB dated 27.11.2014 is hereby quashed and set aside and the appeal is revived. The Tribunal is hereby directed to decide the appeal after affording opportunity of hearing to the petitioner as expeditiously as possible. Rule made absolute accordingly.
(A.J.DESAI, J.) (A.G.URAIZEE,J) pnnair Page 6 of 6