Customs, Excise and Gold Tribunal - Mumbai
Gujarat State Fertilizers And Chem. ... vs C.C.E. And C. on 6 September, 2000
Equivalent citations: 2000(121)ELT729(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. This ROM application has been filed by the applicant making the following prayers :
(a) To grant a personal hearing before disposing of this humble petition.
(b) to recall the Final Order No. C.II/1897-98/2000 WZB dated 5-7-2000.
(c) to rectify the mistakes apparent on record as may be deemed fit, proper and legal and
(d) to grant any other suitable relief and remedy as may be deemed fit in the interest of justice and in accordance with Jaw.
2. From the above, it will be clear that one of the prayers is to recall the order made by this Bench on 23-6-2000. By our order dated 23-6-2000 certified on 5-7-2000, we had held in Application E/Misc-117/2000 in Appeal E/228/2000 as follows:
"This is an application for early hearing by the respondent assessee. In the appeal the Commissioner of Central Excise and Customs, Vadodara, has filed an appeal against the order passed by the Commissioner (Appeals) Central Excise and Customs, whereunder, the Commissioner (Appeals) has allowed the assessee's appeal holding that in respect of captive consumption doctrine of unjust enrichment will not be applicable. Following the judgement of the Bombay High Court in the case of Solar Pesticides Pvt. Ltd. v. Union of India [1994 (50) ECR 7 (Bom.)] it has been brought to our notice that the said judgement of the Bombay High Court has been reversed by the Supreme Court in the case of Union of India v. Solar Presticides Pvt. Ltd. 2000 (1) SCALE 423. In view therefore the miscellaneous application which was filed by the assessee for early hearing and which is sought to be withdrawn is rejected, but, we take the appeal and dispose of in favour of the appellant that is the department, reversing the impugned order that is Order-in-Appeal COMMR (A)/338/VDR/99 dt 15-10-1999. Appeal stands disposed of alongwith the miscellaneous application on the above terms."
3. Shri Willingdon Christian, alongwith Shri Mayur Shroff the learned advocates appeared for the applicants and argued at the outset that they have not filed the Vakalatnama and pleaded that they would file the same during the course of the day and with the specific permission of the Bench they argued the application on behalf of the applicants.
4. Shri Willingdon Christian argued that on 23-6-2000 when the early hearing application was taken up i.e. E/Misc (Early Hearing) 117/2000, he and his client thought that the appeal would not be disposed of because the notice of hearing states in paragraph 3 as follows :
"In case the applicant fails to appear at the abovesaid date and time of hearing in person or through authorised representative the application may be dismissed for default or heard and decided on merits in his absence. In case the respondent fails to appear, the application may be decided ex-parte."
5. Shri Willingdon Christian forcefully submits before us that if at all the Tribunal could have heard, it could heard only the early hearing application and could not have heard the appeal itself. Shri Willingdon Christian further submits that there is a prayer made by the applicant that being the respondent in the appeal, he even withdrew the application for early hearing. This has been reflected in the order made on 23-6-2000. Shri Willingdon Christian vehemently and forcefully submits that it is incomprehensible that the appeal could never have been decided without a proper notice of hearing. He states that there will be violation of the principles of natural justice which may be prejudicial to the applicant who is the respondent of that appeal, if the matter is decided in absence of a proper notice. He further states that this is not a matter for an ordinary amount and the amount involved is nearly Rs. 50.00 lacs. He states that even in respect of unjust enrichment in relation to captive consumption, parameters have been laid down by the Hon'ble Supreme Court in the case of Solar Pesticides Ltd. v. Union of India 2000 (116) E.L.T. 401 (S.C.) which reads as follows :
"30. On appeal filed by the assessee, the Tribunal allowed the same following the decisions of the Bombay High Court in Solar Pesticides (India) Limited v. Union of India, 1992 (57) E.L.T. 201, which we have now held is not a good law. The Tribunal did not decide as to whether the assessee had passed on the incidence of duty to the consumer. That contention would require consideration. Accordingly, we allow this appeal, set aside the judgement dated 6-7-1999 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and direct it to decide the appeal by the assessee afresh on (he question as to why whether the incidence of duty on the importer raw material had been passed on by the importer to any other person."
6. Paragraph 30 of the said order was highlighted before us. Shri Willingdon Christian states that the directions contained in the said paragraph namely passing the incidence of duty in respect of the goods should be checked by the Tribunal as decided by the Supreme Court. He also invited our attention to the judgement of the Supreme Court in the case of Commissioner of Central Excise, Jamshedpur v. Usha Beltron Ltd. - 2000 (119) E.L.T. 3 (S.C). He specifically invited our attention to paragraph 2 of the said judgement. He also invited our attention to various provisions of the CEGAT Procedure Rules, especially Rules 18, 19, 20 and 21 as contained in page 4 of the application. The thrust of the argument of Shri Willingdon Christian is that the appeal could not have been decided by the Tribunal unless the party was told about the disposal of the appeal on that date. Therefore, the order of 23-6-2000 should be recalled. He invites our attention to the order passed by the Commissioner (Appeals) where it has a reference to the assessee's cross objection of 14-6-1999 where the question regarding the relevant date in terms of Section 11A for recovery of the refunded duty has been raised by the assessee. Shri Willingdon Christian emphasised the fact that this question was not decided by the Commissioner (Appeals). The decision has been made by the Commissioner (Appeals) on unjust enrichment following the judgment of the High Court in Solar Pesticides Pvt. Ltd. He therefore states that the right to pursue the said plea should be left open. He also cited the decisions of the Tribunal in Rosemount (India) Ltd. v. CCE, Ahmedabad, 1998 (25) RLT 651, in Far Precision Bearings Ltd. v. CCE, Vadodara, 1998 (25) RLT 528, Polycone Paper Ltd. v. CC, Bombay-l - 1994 (70) E.L.T. 225 and the judgment of the Supreme Court in the case of Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors., (2000) 1 SCC 128. He states that in a matter of Rs. 50.00 lacs valuable right of the assessee should not be watered down.
7. Shri A. Chopra, the learned DR would state that in the Order-in-Original passed by the Assistant Commissioner, it is clear that the refund has been granted in RG23A Part II. Therefore the question of refund does not survive now.
8. We have considered the rival submissions. At the outside (sic), we specifically asked the learned counsel whether he would like to argue the case before the same members and we would withdraw, if he objects. Shri Willingdon Christian stated that he has full faith with the members and therefore we proceed to deliver the judgment.
9. The applicant respondent here has filed this application to recall the order passed on 23-6-2000. When the matter came up on that day, we were really surprised that the assessee applicant has filed the application for early hearing and we find that the assessee filed another application for withdrawal of the early hearing application. In the said order made on that day, we have clearly held that the judgement of the Supreme Court in Solar Pesticides Pvt. Ltd. has clearly decided the issue and nothing remains. Therefore, we allowed the appeal of the department.
10. This takes us to the question of the notice of hearing regarding the appeal filed by the department. Normally in the Tribunal, it has been the practice that wherever it is found expedient and necessary, we always try and dispose of the appeal at the earliest point of time. Here we felt that since the issue has been covered by the judgement of the Supreme Court which is the law of the land, we have decided to take up the appeal itself. We felt that even if the respondent is present, he could not argue anything further otherwise.
11. It is the salutary principle of our body politic that rules of natural justice is a basic feature of the Constitution. We are aware of this. What prevented the applicant's advocate or representative of the applicant to be present on that day is not clear and is not reflected in the present application. We asked specifically Shri Willingdon Christian whether any reasons have been mentioned about it. He states no reasons have been mentioned in the application other than paragraph 5 of the ROM application. It is stated therein that the applicant's advocate has been abroad on vacation and nobody was present for the hearing of the miscellaneous application on 23-6-2000. If the argument of Shri Willingdon Christian has to be accepted, and if the amount involved is Rs 50.00 lacs, we do not understand what prevented the representative of the company to be present on that day. No explanation has been given as to why the representative of the company could not be present on that day. As far as disposal of the appeal is concerned, we normally dispose of the appeal, as stated above, at the earliest possible time and opportunity. Shri Willingdon Christian was at pains to state that the points which are in his favour which have been raised in the memo of cross objection filed before the Commissioner (Appeals) would be argued by him. This argument and point should be stated to be rejected. Shri Willingdon Christian cannot convert the rectification of mistake application into a right of memorandum of cross objection. There is a specific provision provided under the provisions of Section 35B(4) of the Act. The said provision reads as follows :
"On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (3)".
12. If the argument of Shri Willingdon Christian has to be accepted, then the provisions extracted above will become otiose and unnecessary. What cannot be achieved in a direct way should not be allowed and should be deprecated to be taken in a round about way. Having been absent on the date of the hearing of the application, it does not lie in the applicant's mouth to raise such type of pleas. As far as the instant application is concerned, we have stated that, in our order dated 23-6-2000, we do not make a particular reference to what is contained in paragraph 30 of the judgement of the Supreme Court in case of Solar Pesticides. If the department has not yet granted refund, the department should take note paragraph 30 of the judgement of the Supreme Court in Solar Pesticides case and take action accordingly. As far as the other pleas are concerned, namely, the question of demand that is contained the memorandum of cross objection filed before the Commissioner (Appeals) highlighted by Shri Willingdon Christian is concerned, that cannot be allowed at this juncture. We have already reversed the order of the Commissioner (Appeals). If at all there is any remedy against that order, the applicant is advised to take such remedies as may be open to him.
13. With these observations the application stands disposed of.
14. Whenever parties file miscellaneous application for early hearing, it is expected that the party should pursue that with due diligence. One should realise that the West Zonal Bench has got 15000 appeals and such type of due diligence is required on the part of the applicant who file such application.