Customs, Excise and Gold Tribunal - Delhi
Commr. Of C. Ex. vs Welcure Drugs And Pharmaceuticals Ltd. on 28 May, 2003
Equivalent citations: 2004(166)ELT465(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. The Revenue has sought amendment of the EA-3 Form.
2. I have gone through the amendment sought which of formal nature and the omission appears to have taken place on account of typographical error in the Office of the Department. Therefore, the amendment/replacement of EA-3 Form as sought by the Department is allowed.
3. Today the matter is posted for hearing on merits and I proceed to hear the same.
4. In the appeal, the Revenue has questioned the validity of the impugned order-in-appeal dated 2-9-2002 which is common against all the respondents vide which the Commissioner (Appeals) has reversed the order-in-original on the ground that it was totally non-speaking and also not proper and legal. The facts are not much in dispute. The proceedings were drawn against the respondents on the strength of a show cause notice dated 19-11-1998 by alleging that the firm, respondents No. 1, had indulged in the clandestine removal of the goods, while the other respondents helped the firm in the removal of the goods with full knowledge that those were cleared without payment of duty. After getting the reply wherein the respondents controverted the allegations of the clandestine removal of the goods, the adjudicating authority initially confirmed the duty demand with penalty vide order dated 17-8-1999. That order was, however, set aside by the Commissioner (Appeals) and the matter was sent back to the adjudicating authority for de novo consideration.
5. The adjudicating authority after the receipt of the order of Commissioner (Appeals), again endorsed its original order, though, it was set aside by the Commissioner (Appeals). The Commissioner (Appeals) again had set aside the said order of the adjudicating authority by observing the same to be totally non-speaking and not proper and legal. Since he had no power to remand the matter to the adjudicating authority, the Revenue has filed the present appeal, virtually praying for the remand of the matter to the adjudicating authority.
6. I have heard both sides. The bare perusal of the record shows that the adjudicating authority after the remand, did not apply its mind to the case at all. The authority again endorsed that very original order which was set aside by the Commissioner (Appeals). It was not proper on the part of the adjudicating authority to act in that manner. The adjudicating authority was bound to respect and comply with the order of the Commissioner (Appeals) in letter and spirit. The direction given by the Commissioner (Appeals) was that that the authority will decide the matter afresh after supplying all the documents to the respondents. The order of the adjudicating authority which was out-rightly to the direction contained in the order of remand, had been rightly held to be not legal, proper and non-speaking by the Commissioner (Appeals).
7. Since the adjudicating authority had failed to pass a legal and proper order as per the direction given in the remand order by the Commissioner (Appeals), in my view, the matter deserves to be sent back to the adjudicating authority for complying with the directions and then decide the matter de novo after applying mind to the facts of the case and documents brought on record by both the sides after affording on opportunity of hearing, without taking into consideration the initial order-in-original which was set aside by the Commissioner (Appeals). Therefore, the impugned order of the Commissioner (Appeals) stands modified to the extent that the matter is sent to the adjudicating authority for fresh decision. Since the show cause notice was issued as long back as in 1998, the adjudicating authority shall make every attempt to dispose of the matter within a period of four months from the date of receipt of the copy of the order. The appellants are also directed to cooperate with the (sic) for the expeditious disposal of the matter. The appeal of the Revenue accordingly stands disposed of.