Custom, Excise & Service Tax Tribunal
M/S Microland Ltd vs Cc (Prev.) on 14 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. I
APPEAL NO. C/537, 541, 553, 554, 555, 556, 562, 614/06 Mum
Arising out of Order-in-Original No. CCP/KPM/ADJN/R&I/I/2006 dated 17.01.2006 passed by the Commissioner of Customs (Preventive), Mumbai.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.K. Jain, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s Microland Ltd.
M/s Celtronix Power India Pvt. Ltd.
Shri Manoharlal Tandon
Shri Pradeep Kaur
Shri Ashok Radhakrishnan
Shri Anand Sudarshan
Shri Navin Kulkarni
Shri Venkatraman Raghavendran
:
Appellant
Versus
CC (Prev.)
Mumbai
Respondent
Appearance Shri L.P. Asthana, Advocate Ms Juhina Sinha, Advocate Shri T. Vishwanathm, Advocate Ms. Philip, Advocate Shri Prasad Paranjape, Advocate for appellant Shri K.M. Mondal, Spl Counsel For Respondent CORAM:
Shri Ashok Jindal, Member (Judicial) Shri P.K. Jain, Member (Technical) Date of Hearing :25.6.2014 Date of Decision :...2014 ORDER NO.
Per Ashok Jindal Heard both sides.
2. The learned Counsel for the main appellant i.e. M/s Celetronics Power India Pvt. Ltd. submits that in this matter the last hearing was held before the adjudicating authority on 23.08.2003. Thereafter, then advocate for the appellant submitted the detailed written submissions on 04.11.2003 and the impugned order was passed only on 31.01.2006. There is an inordinate delay in passing the order, hence this order is required to be set aside and remand the matter back to the adjudicating authority for fresh consideration. In support of this contention, the learned Advocate relied on the CBEC Circular No.732/48/2003-CX dated 05.08.2003 wherein it was directed that the concerned adjudicating authority as well as the appellate authority should pass the order within a period of one month from the date of conclusion of personal hearing. In support of his contention the learned Advocate relied on the following judgements:-
(a) Jt. Commissioner of Income Tax v. Saheli Leasing & Industries Ltd. 2010 (253) ELT 705 (SC).
(b) Bhagwandas Fatechand Daswani v. HA International & Others - AIR 2000 SC 775.
(c) Kanhaiya Lal & Ors v. Anup Kumar & Ors AIR 2003 SC 689.
(d) Devang Rasik Lal Vora vs. Union of India 2003 (158) ELT 30 (Bom.).
(e) Shivsagar Veg. Restaurant v. Asst Commissioner of Income Tax, Mumbai 2009 (13) STR 11 (Bom.)
(f) Emco Ltd. v. Union of India & Others 2014-TIOL-222-HC-Mum-CX.
(g) Union of Carbide Corporation vs. Union of India AIR 1992 SC 248.
2.1 The learned Counsel also submitted that the adjudicating authority has not considered certain points in the adjudication order and also not given findings on the issue of manufacturing of the impugned goods. Therefore, he prays that the Tribunal to first decide the preliminary objections and if the preliminary objection is rejected thereafter, the appellants be heard on merits.
3. On the other hand, the learned Spl. Counsel appearing on behalf of the Revenue submitted that in the impugned order the adjudicating authority has considered all the contentions raised by the appellants in their defence in the reply to the show-cause notice. After considering the written submission filed by the appellants, the adjudicating authority has passed the impugned order and there is no time limit framed to adjudicate the show-cause notice as held by the Honble Supereme Court in the case of CCE v. Bhagsons Paint Industry (India) 2003 (158) ELT 129 (S.C.). He also submitted that the appeal proceeding is a continuation of original proceedings as held by the Honble Calcutta High Court in the case of UOI v. Shashi Deo Jha 1999 (113) ELT 385 (Cal) and in the case of Perfect Engineering Works v. CCE Baroda 1996 (81) ELT 182 (T). The learned Spl. Counsel also submitted that the Tribunal should decide all the points simultaneously together with preliminary objections of the appellants as held by the Honble Gujarat High Court in the case of Sarabhai Electronics Ltd. v. UOI 1991 (53) ELT 549 (Guj). Therefore, he submitted that the Tribunal is to be heard the merits of the case and thereafter to decide the issues all together.
4. Considered the submissions made by both sides.
5. We find that the hearing was concluded on 23.08.2003 and the written submission was submitted by the appellants on 04.11.2003 but the impugned order was passed only on 31.01.2006. Therefore, there is a delay of 2 years in passing the order.
5.1 With regard to the learned Spl. Counsels reliance on the decision of Bhagsons Paint Industry (supra) and submits that there is no time limit to adjudicate the show-cause notice. We do agree with the contention that there is no time limit for adjudication of the show-cause notice but in this case the hearing on the show-cause notice has been concluded on 23.08.2003 and the impugned order was passed after a period of 2 years. Therefore, this case has no relevance to the issue in hand.
5.2 With regard to the learned Spl. Counsels reliance on the decision in the case of Shashi Deo Jha (supra) wherein the Honble Calcutta High Court held that the appeal proceeding is a continuation of original proceedings, the said but that case also not relevant to the facts of this case as we are not required to pass an adjudication order.
5.3 With regard to the reliance on the decision in the case of Sarabhai Electronics Ltd.,(supra) the learned Spl. Counsels submission is that the Tribunal should decide all the points simultaneously along with the preliminary objection. In the said case the Honble High Court itself held that it is obvious that the petitioners are pursuing two parallel proceedings in respect of the same subject matter. After having failed to obtain a favourable order on preliminary objection raised in appeal, the petitioners have approached this Court and the petitioners request this Court to decide the preliminary objection raised by them in appeal. Therefore, the question arisen before the High Court has the appellate Tribunal following the correct procedure and if not, should this High Court also follow the same erroneous path and permit the petitioners to challenge the decision on preliminary objection while keeping the appeal filed before the appellate Tribunal pending and awaiting decision thereon, on merits? In this case adjudication has been finalized by way of impugned order and the learned Counsel specifically asked to decide his preliminary objection. Therefore, the facts of the said case have no relevance to the case in hand.
5.4 Further, we find that the CBEC Circular No. 732/48/2003-CX dated 05.08.2003 reads as under:-
I am directed to say that it has been brought to the notice of the Board that often there is delay in issue of Adjudication/Appellate orders in cases where personal hearing has already been concluded. In certain cases the issue of orders has taken substantially longer periods even after conclusion of personal hearing. This kind of situation could result mainly due to lack of proper supervision on the part of the senior officers.
2. The Board has taken a serious view of the matter. In this connection your attention is invited to Boards Circular No. 32/80-CX.6 dated 26th July, 1980 in which it has been directed that in all such cases where personal hearing have been concluded it is necessary to communicate the decision immediately or within a reasonable time of 5 days. Where for certain reasons, the above time limit cannot be adhered to in a particular case, the order should be issued within 15 days or at most one month from the date of conclusion of personal hearing. The above instructions of Board are reiterated. As per the said Circular the adjudicating authority was directed to communicate the decision to the assessee within a reasonable time of 5 days and if the above time limit cannot be adhered to in a particular case, the order should be issued within 15 days or at most one month from the date of conclusion of personal hearing. Despite the CBEC Circular cited here-in-above, the impugned order is passed beyond the time limit prescribed by CBEC. Therefore, the question is whether the principles of natural justice has been followed or not?
5.5 Further we find that in the case of Bhagsons Paint Industry (supra) the Honble Supreme Court has set aside the decision of the Honble Madras High Court on the ground of long delay in delivery of judgement and also observed that however, it is correct to this extent that a long delay in delivery of judgement gives rise to unnecessary speculations in the minds of parties to a case. Further, in the case of Saheli Leasing & Industries Ltd., (supra) the Honble Supreme Court observed that after arguments are concluded, an endeavour should be made to pronounce the judgement at the earliest and in any case not beyond a period of 3 months. Keeping it pending for long time, sends a wrong signal to the litigants and the society.
5.6 Further in the case of Kanhaiya Lal & Others (supra) the Honble Supreme Court observed as under:-
In the light of what is stated above, in our view, the impugned judgements cannot be sustained. Further, as stated above, the arguments were heard in November, 1990 and the High Court pronounced the judgements on 7th May, 1993. This Court in Bhagwandas Fatechand Daswani and Ors. v. HPA International and Ors. MANU/SC0028/2000 : (2000)1SCR2543, dealing with the contention that the long delay in delivery of judgement is sufficient to set aside the judgement under appeal without going into this broad question, set aside the judgement under appeal without going into this broad question, set aside the judgement under appeal on the ground of delay in delivery of judgement without expressing any opinion on the merits of the case and remitted the case to the High Court for deciding the appeal afresh on merits. While doing so this Court observed, However, it is correct to this extent that a long delay in delivery of judgement gives rise to unnecessary speculations in the minds of parties to a case. Moreover, the appellants whose appeals have been dismissed by the High Court may have the apprehension that the arguments raised at the Bar have not been reflected or appreciated while dictating the judgement nearly after five years We, therefore, on this short question, set aside the judgement under appeal. 5.7 Our own jurisdictional High Court of Bombay also observed in the case of Devang Rasik Lal Vora (supra) that it has been held time and again that justice should not be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that. 5.8 In the case of R.C. Sharma vs. Union of India, the Honble Apex Court directed this Tribunal to frame and lay down the guidelines on the similar lines as are laid down by the Apex Court in the case of Anil Rai vs. State of Bihar and to issue appropriate administrative directions to all the branches of the CEGAT in that behalf. The CESTAT had already drafted guidelines in this behalf. Again in the case of Shivsagar Veg. Restaurant (supra) the Honble Bombay High Court held as under:-
In the circumstances, without going into the merits, or demerits of the impugned order, delay in delivery of judgement by itself is sufficient to set aside the impugned order passed by the Appellate Tribunal to the extent, it is challenged by the appellant. Finally, the High Court allowed the appeal. 5.9 Further in the case of Synefra Engineering & Construction ltd. v. CCE Pune - 2012 (286) ELT 10 (Bom) again the Honble Bombay High Court held that since the impugned order of the CESTAT has been passed almost after six months from the date of concluding of hearing of the appeal and the Tribunal has not specifically dealt with some of aforesaid vital issues in spite of directions given to that effect by this Court set aside in the earlier round of litigation, therefore, impugned order be set aside and the matter be restored to the file of the CESTAT for fresh adjudication.
5.10 In this case also we find that the hearing was concluded on 23.08.2003 and the written submission was filed by the appellant on 04.11.2003 thereafter the impugned order was passed with an inordinate delay of more than two years. In these circumstances, we do agree with the contentions of the learned Counsel.
5.11 Further, the learned Counsel through his written submission brought certain facts to our notice that the adjudicating authority has not considered certain issues in the impugned order. Therefore, we find it would be in the interest of natural justice to remand the matter back to the adjudicating authority for denovo adjudication.
6. Accordingly, the impugned order is set aside and the matter is remanded back with direction to the adjudicating authority to pass an appropriate order, within the reasonable time, after giving a reasonable opportunity of hearing to the appellants to present their case.
7. Appeals are disposed of by way of remand.
(Order pronounced in open Court on .) (P.K. Jain) Member (Technical) (Ashok Jindal) Member (Judicial) nsk ??
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