Custom, Excise & Service Tax Tribunal
Ratinder Pal Singh Bhatia vs Cc, Icd, Tughlakabad on 17 April, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-DB Date of Hearing:17.04.2009 Appeal No.C/288/2006 Ratinder Pal Singh Bhatia Appellant Vs. CC, ICD, Tughlakabad Respondent
Present for the Appellant :Shri H. Bajaj, Advocate Present for the Respondent :Shri S.K. Panda, Jt. CDR Appeal No.C/291/2006 Arjun Amla Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant : Shri Harpreet Adv.
Present for the Respondent : Shri S.K. Panda, Jt. CDR Appeal No.C/296/2006 Super Cassettes Indus. Ltd. Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant :Shri R.K. Hasija, Advocate Present for the Respondent :Shri S.K. Panda, Jt. CDR Appeal No.C/297/2006 Sunil Wadhwani Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant :R.K. Hasija, Advocate Present for the Respondent :Shri S.K. Panda, Jt. CDR Appeal No.C/329/2006 Ashfaq Beg Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant : Shri Harpreet Singh, Adv. Present for the Respondent : Shri S.K. Panda, Jt. CDR Appeal Nos.C/335/2006 & C/338/06 Deept Swarup & Bimal Jain Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant :Shri R.K. Handoo, Sh.Nitendra Kumar, Advocates Present for the Respondent : Shri S.K. Panda, Jt. CDR Appeal No.C/477/2006 Sulekh Chand Jain Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant :Shri Nitendra Kumar Present for the Respondent : Shri S.K. Panda, Jt. CDR Appeal No.C/546/2006 Devender Pal Appellant Vs. CC, ICD, Tughlakabad Respondent Present for the Appellant :Shri Piyush Kumar, Advocate Present for the Respondent : Shri S.K. Panda, Jt. CDR Appeal No.C/4/2007 CC, ICD, Tughlakabad Appellant Vs. Sundram Exports Respondent Present for the Appellant : None Present for the Respondent : Shri S.K. Panda, Jt. CDR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr. Rakesh Kumar, Technical Member PROCEEDING OF HEARING PER: D.N.PANDA
This Bunch of appeals were before us earlier on 19.2.2009. On that date both sides requested us to fix the matter on 17.4.2009. Accordingly, they took notice for appearance today. The parties those who were absent on that day, we directed to get notice.
2. Today when the matter was called, ld. Counsel Shri R.K. Handoo submits that if the Bench considers to hear the principal litigants involved in appeal case No.C-338/06 and C 296/06 i.e. Shri Bimal Kumar Jain, Super Cossets and the respondent in revenues appeal case No.C/4/07, a proper view can be drawn before hearing other appellants in this bunch of appeals. To this proposition both sides agree. While the matter was proceeding, we were informed that following Counsels appear for the respective parties noted against each:-
Sl.
No. Advocate Appeared for
1. Shri H. Bajaj Ratinder Pal Singh Bhatia (C/288/2006)
2. Shri Harpreet & Arjun Amla (C/291/2006)
3. Shri P.K.Hasija Super Cassettes Indus Ltd. (C/296/2006)
4. Shri P.K.Hasija Shri Sunil Wadhwani (C/297/2006)
5. Shri Harpreet Singh Ashfaq Beg (C/329/2006)
6. Shri R.K. Handoo, Shri.Nitendra Kumar Deept Swarup Bimal Jain(C/335/2006 & C/338/06)
7. Shri.Nitendra Kumar Sulekh Chand Jain (C/477/2006)
8. Shri Piyush Kumar Devenderpal (C/546/2006)
9. None Sundram Exports (C/4/2007)
3. When we enquired about the appearance in the case of Bimal Kumar Jain, Shri Nitin Kumar Advocate submits that he has no Vakalatnama but he has been instructed by Mr. Navin Malhotra to mention on his behalf for an adjournment. Shri Nitin Kumar has no Vakalatnama to record his appearance. Therefore, he submits that he shall file a memorandum of appearance being instructed by Shri Navin Malik ld. Counsel in appeal case No.338/06-Cus& 477/06. The Memo so filed is available in appeal record No.338/06.
4. Ld. Counsel Shri Handoo preliminarily submits that the cause of action of this bunch of appeal is in respect of claim of DEPB credit by the appellants and that has been questioned by Revenue on the ground that 4 DEPB strips were availed by the appellants from Sundram Exports who over invoiced the goods exported and got the DEPB Credit. To such proposition revenue also agrees. He Further proceeds to submit that his client Deep Swarup Aggarwal in appeal case No.335/06 is under allegation of abating the exports. Such is also the allegation in the case of all other appellants. Other appellants are in Sl.No.1-8 of cause list today under regular matters. However Shri Piyush Kumar, ld. Counsel submits that his client is an employee of the CHA who is in appeal case No.C/546/06. Client of the ld. Counsel Shri Narasimhan law involved in appeal case No.C/296/06 is not ascertainable in his absence.
5. Ld. Jt.CDR brings to our notice that the appellant Arjun Amla in appeal case No.291/06 shall be in the similar footing like Bimal Kumar Jain in appeal case No.C/338/06. But ld. Counsel appearing for Shri Arjun Amla opposes the proposition of ld. Jt. CDR. He agrees that his case shall be in the similar footing of the case of the client of Shri R.K. Handoo, ld. Counsel.
6. When averments as above were made by ld. Counsels Shri Nitin Kumar appearing on behalf of Shri Navin Malhotra expresses his difficulty to submit his case. He, therefore, prays a short adjournment and prays to call the matter next week.
7. Ld. Counsel Shri R.K. Handoo has made a preliminary objection drawing our attention to para 39 of the order of adjudication stating that there was series of hearing from 2nd part of 2001. That paragraph of the adjudication order shows that last opportunity was granted on 8.9.05. According to him, if this paragraph is read, that shall throw light that the authority who heard the matter is different from the Authority who has passed the order. Therefore, the order itself is not sustainable. In support of his objection he submits that the ratio laid down by Apex Court in the case of Golapalli Nageswara Rao vs Andhra Pradesh State Transport reported in AIR 1959 SC 308. When above objection has been brought to our notice, we are very serious to direct the ld. Jt. CDR to examine the whole record thoroughly with the assistance of the ld. Jurisdictional Commissioner as well as the investigation Officers to submit a report to the bench whether that was the position as averred by the ld. Counsel Shri R.K. Handoo. We understand that examination of the issue will certainly require some time by revenue when there is bulk of record so as to get proper instruction from the authorities. It would be just and proper to grant an opportunity to revenue to cross this preliminary objection from the opposite side. Ld. Jt.CDR prays time for four weeks for appropriate submission in the matter we allow.
8. In view of the gravity of the issues involved, we are inclined to grant four weeks time to the Revenue for guiding the Bench in the matter properly.
9. When we look into the appeal in Appeal case No.C/4207 under Sl. No.9 today filed by the Revenue, we are able to notice that Revenue has come in appeal against the same adjudication order, which are subject matter of appeal in all other appeals today listed under Sl. No.1 to 8. We make it specific that entire bunch of appeals listed today relate to the order of adjudication issued on 31.1.2006. Ld. Jt.CDR submits that this appeal is with the grievance of the Revenue appearing in page 138 of the appeal memo which reads as under:-
The adjudicating authority should have confirmed duty demand & imposed penalties on nine importers as proposed in the SCN F. No.50D/33/99/CI dated 04.12.2000 issued by the DRI. The learned committee held that order merits review on the basis of afore said CESTAT decision against the nine importer for confirmation of duty and imposition of penalties against them.
10. When we read paragraph extracted above, that shows nine importers were brought to charge by the Show cause notice issued by DRI. But the ld. Adjudicating Authority who passed the order made them free from the imposition of duty and penalty. Revenue has been seriously prejudiced by such action of the ld. Adjudicating Authority. Therefore, ld. Jt. CDR also requests further time to examine the details of their case from its origin to conclusion. For this reason he seeks time of four weeks for appropriate examination of the record from grassroots level. We grant four weeks time. This four weeks time shall be concurrently be counted without being calculated as eight weeks time.
11. We direct the registry to list these matters on 25th May 2009. All parties present today except Shri B.L. Narasimhan ld. Counsel take notice. Shri R.K. Hasija ld. Counsel appearing today undertakes to inform Shri B.L.Narasimhan as to the aforesaid proceedings as well as the next date of hearing.
12. In view of anxiety expressed by the learned Counsels for their clients, we make it clear to all the parties that absence of any of the parties on the aforesaid day shall call for disposal of the matter on its merits without further adjournment. It is also the view expressed by the Bar that the matter may be listed as Item No.1 on 25th May, 2009 in the regular matter list. Registry would do well to do so.
13. Parties state that copy of this order be made available to them. We direct registry that following due procedures followed the order may be numbered and copies issued to all concerned.
(Dictated in the open Court) (D.N.PANDA) JUDICIAL MEMBER (RAKESH KUMAR) TECHNICAL MEMBER Anita