Custom, Excise & Service Tax Tribunal
Omprakash Berlia vs Commissioner Of Customs (Import), ... on 19 November, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. II Application Nos. C/S/985, 1377, 1381 to 1383/08 In Appeal Nos. C/657, 923, 930 to 932/08 (Arising out Order-in-Original No. 76/2008/CAC/CC/KS dated 28.2.08 passed by the Commissioner of Customs (Adjn), Mumbai) For approval and signature: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. K.K. Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Omprakash Berlia Jamnadas Mange Mehboob I. Munshi Mukesh Ramani Tanaji Maruti Deshmukh Appellant Vs. Commissioner of Customs (Import), Nhava Sheva Respondent Appearance:
Shri M.L. Grover, Advocate for appellant no. 1 Shri S.N. Kantawala, Advocate with Mr. Brijesh Dathak, Advocate for appellant no. 2, 4 & 5. Shri T. Tiju, JDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. K.K. Agarwal, Member (Technical) Date of hearing : 19.11.2008 Date of decision : 19.11.2008 O R D E R No:..
Per: Mr. P.G. Chacko, Member (Judicial) After examining the records and hearing both sides, we note that these appeals require to be finally disposed of on the short question whether the principles of natural justice were followed by the adjudicating authority. The appellants in appeal nos. C/930/08, C/657/08, C/923/08, C/931/08 and C/932/08 are respectively noticee numbers 2, 4, 7, 8 and 9 in the show-cause notice. It is submitted by the Ld. Counsel for noticee no. 4 that his client was not heard by the Commissioner who passed the impugned order. It is pointed out that there was a change of adjudicating authority in this case and that certain hearings were conducted by the predecessor-in-office to the Commissioner who passed the impugned order. The Ld. Counsel has particularly referred to para 46 of the order, which is reproduced below:-
46 (i) A personal hearing was fixed by my predecessor on 12.10.2004 at 11.30 hrs. Shri M.L. Grover, advocate, representing noticee no. 4 appeared and stated that a detailed written argument would be filed within two weeks for consideration.
(ii) With the change in adjudicating authority a personal hearing was fixed on 20.2.2007 at 15.30 hrs. None appeared for the hearing on that date and time, hence the next personal hearing was fixed on 6.3.2007 at 13.00 hrs.
(iii) Shri Arun H. Mehta, advocate representing Shri Mehboob Munshi and Shri Mahesh Ganatra noticee nos. 2 and 3 respectively appeared and reiterated the submission already made in their reply dated 9.11.2004 relying on various judgements. He drew attention to last sentence of para 75 and para 80(c) of the show cause notice and stated that they have not violated the provisions of section 111 of the Customs Act and accordingly, not liable to penalty under Section 112 of the Customs Act, 1962. In this regard, he placed reliance on Supreme Court judgment of Akbar Badruddin Jiwani vs. Union of India.
(iv) Next personal hearing was fixed on 28.3.2007 at 12.00 hrs. Since nobody appeared for hearing, the last and final hearing was fixed on 26.2.2008 at 11.30 hrs.
(v) Despite the fact that number of personal hearings have been granted, the noticees except two i.e. noticee nos. 2 and 3 others have not appeared for personal hearings at all. Since the case cannot be kept pending indefinitely, I have no other alternative than deciding the case based on available records. It is submitted that what was recorded by the Ld. Commissioner regarding personal hearing of noticee no. 4 is contradictory to the information gathered by the latter under the Right to Information Act. In this connection, the Ld. Counsel produces a copy of order no. 5/08 dated 10.11.08 issued by the CPIO under the Right to Information Act. This order indicates that notice for personal hearing scheduled for 20.2.07 and 26.2.08 were not served on noticee no. 4. This order, however, proceeds to observe that it was not necessary to call the said party again and again for hearing as his counsel had already submitted written submissions after personal hearing. As rightly pointed out by the counsel, there is contradiction between the information available under the RTI Act and the statement contained in the impugned order regarding personal hearing of noticee no. 4. The impugned order says that there was a hearing fixed for 28.3.07 and that, since there was no appearance on that day, hearing was adjourned to 26.2.08. The information furnished under the RTI Act is to the effect that there was a hearing fixed for 20.2.07 which was adjourned to 26.2.08 and that notice for hearing on either of these dates was not served on the party. We have also seen a copy of the written submissions filed by the counsel for noticee no. 4. Although in these written submissions, there was no specific request for personal hearing, it was incumbent upon the adjudicating authority to enquire as to whether noticee no. 4 wanted to be heard further, in keeping with the principles of natural justice. In any case, the impugned order does not say that, after filing of the written submissions, it was not necessary for the Commissioner to arrange further hearing for noticee no. 4. As regards the other noticees, we find that the impugned order states that Sri Arun H. Mehta, advocate, represented noticees no. 2 and no. 3 on 6.3.07 and made submissions before the adjudicating authority. The records filed by the SDR in answer to a query from the bench includes a letter dated 17.10.06 addressed to the JDR by the Asst. Commissioner of Customs (Adj), wherein there are averments as to who represented whom before the adjudicating authority on various occasions. We have found glaring contradictions in these averments vis-`-vis those contained in para 46 of the impugned order. We have heard the JDR also. For one of the appellants namely noticee no. 2 (appellant in appeal no. C/930/08), there is no representation today, nor any request for adjournment. This party, we note, is the main appellant in this batch of appeals.
2. It is clearly seen from the records that the rule of natural justice was not scrupulously followed by the adjudicating authority. An effective opportunity of being personally heard was not afforded to many of the appellants. We find that in the appeal of the main party, who is not represented today, one of the grievances is that an effective opportunity of being heard was not given by the Commissioner.
3. In the aforesaid circumstances, we have no option but to send the case back to the adjudicating authority for fresh decision in adjudication of the show-cause notice in accordance with law and the principles of natural justice. Accordingly, the impugned order is set aside and these appeals are allowed by way of remand directing the Commissioner to pass fresh order of adjudication after giving all the noticees reasonable and effective opportunity of being heard.
(Dictated in Court) K.K. Agarwal P.G. Chacko Member (Technical) Member (Judicial) SR 6