Customs, Excise and Gold Tribunal - Tamil Nadu
Triveni Alloys Ltd. vs Cce on 10 September, 1999
Equivalent citations: 2000(90)ECR693(TRI.-CHENNAI)
ORDER V.K. Ashtana, Member (T)
1. In this petition for condonation of delay in filing appeal No. E/2545/98, the appellants have vide their affidavit on record submitted that as against their claim that their induction furnace could not produce more than 7 M.Ts. per heat, the Assistant Commissioner vide letter dated 30.9.1997 informed the appellants that the Commissioner had been pleased to fix the said capacity at 18 M.Ts and therefore, the annual capacity as 57,600 M.Ts. The appellants on receipt of the said letter, represented that they required a speaking order preceded by a show-cause notice on this issue. The said letter had been issued even without hearing them. However, neither did they receive any response to their representation over a long period of time nor did they receive a speaking order in the matter after following the various principles of natural justice which included the basic reasons which had prompted the department to reject their claim of 7 M.Ts per heat and instead to fix the capacity as 18 M.Ts. per heat, under Section 3A of the Central Excise Act, 1944.
2. Heard Sri R. Raghavan, learned advocate for the appellants, who submits that in view of the above facts on record, the appellants were under bona fide belief that as the said letter was a mere letter which was not even issued by the Commissioner himself, who alone is the competent authority to fix the said capacity under Section 3A ibid, and since the request for a speaking adjudication order from the Commissioner was still pending with the department, therefore, the said letter could not be agitated before the appellate authority in appeal, it not being an order passed by the competent authority sitting on adjudication process. The learned advocate submits that however, at a later date, the appellants chanced to come across a decision of the Tribunal in the case of Stag Steel Ltd. v. CCE as , wherein the Tribunal had considered the appeal against a similar letter issued without following the principles of natural justice on the same matter of fixing of annual capacity and had remanded the matter back to the original authority. On being aware of this decision, they came to the conclusion that the remedy may be available before the Tribunal against the said letter and therefore, they decided to take a chance and filed the subject appeal, hence the delay in filing the appeal. In view of the above facts, they request for condonation of the said delay and the application of the ratio of the above decision in their appeal. The learned advocate also cites the decision of the Tribunal in the case of Amar Woollen Mills v. CC as , wherein a situation was considered pertaining to the issue of operative part of an order by endorsing the same on a Bill of Entry, instead of giving a proper speaking or reasoned order. It was held therein that since the certified copy of the adjudication order was supplied only at a much later date, therefore, the delay in filing the appeal did not arise, as the relevant date would be the date of communication of the speaking order. The learned advocate submits that in this case, as for today also no speaking order has been issued and therefore, there is no delay in filing this appeal, which needs to be condoned in terms of the said decision.
3. The learned D.R. Smt. Aruna Gupta submits that in the case of CC v. Union Carbide as , it has been held that non-communication of Appellate Collector's order to Executive Collector or awaiting of decision of Tribunal on a similar issue are not sufficient cause for condonation of delay. She submits that the time expired, while the present appellants were awaiting a speaking order from the Commissioner also cannot be condoned.
4. We have carefully considered the rival submissions and records of the case. We have perused the decision of the Tribunal in the case of CC v. Union Carbide (I) Ltd. (supra) and find that the facts considered in that case stand distinguished from the facts of this case, inasmuch as that there though an adjudication order by the Appellate Collector had been passed, the same had not been received by the Executive Collector, who was also awaiting the decision of the Tribunal on a similar issue. In the present case, presently no speaking order has yet been passed and secondly no one was awaiting any decision of the Tribunal. The appellants in their affidavit have clearly submitted that they chanced to see the < decision of the Tribunal which is quite different from awaiting knowingly of the decision of the Tribunal on a pending issue. Therefore, the said decision needs to be distinguished on facts with respect to the present case under consideration.
5. As against this, we find that in the case of Amar Woollen Mills (supra) it had been held that the limitation for filing of appeal shall commence only from the date of communication of an order in an adjudication proceedings. The learned advocate has submitted that for the reasons mentioned above, the letter in question was not an adjudication order and no such order had been received as yet despite request for the same. Hence, we find substantial force in his argument, as in fact, there is no delay which requires condonation. In view of the peculiar circumstances of the case, we, therefore, hold that the application for condonation of delay is infructuous and since the matter lies on a short compass, we proceed to consider the appeal itself. In this connection, we have perused the decision of the Tribunal in the case of Stag Steel Ltd. (supra) which has also given rise to the said appeal before us, as averred in the appellants affidavits. In this case, the Commissioner had re-determined the annual capacity without giving any opportunity of hearing or without disclosing any material on whose basis the said re-determination has been done. The Tribunal had thought it fit to remand the matter for de novo consideration after following the proper principles of natural justice to the extent that the present letter against which (the letter of Assistant Commissioner) the appellant has grievanced was also issued without giving any basis to the appellants as to why and on what grounds their claim for capacity being 7 M.Ts was rejected and instead much higher capacity of 18 M.Ts was fixed and further because there was no response from the Revenue on the request for a speaking order, therefore, to this extent the facts are similar. However, we find that this very issue had been considered by this Tribunal in the case of Chamundi Steel Castings (India) Ltd. v. CCE as . A perusal of the said decision shows that the facts of the case are on all fours with the facts of the present case for the following reasons:
(a) the letter/order by which the assessee was aggrieved was not signed by the Commissioner, who alone is the prescribed authority to pass such an order under Section 3A(2) of the Act; and
(b) there was no discussion regarding the'assessee's contention for fixing lower capacity.
We find that in the present case, both these facts are exactly identical We had in our decision in the case of Chamundi Steel Castings (I) Ltd. (supra) held that such an order was a non-speaking order and had therefore, remanded the matter to the original authority namely the concerned Commissioner for de novo consideration, after hearing the assessee. One of the main considerations in remanding the matter was that the learned Commissioner would re-consider the matter to the extent that the appellants had already conceded their capacity to be 8.53 MTs, whereas the Revenue had fixed it at 9.5 MTs. In the present case, the gap between the assessee's claim and the quantum fixed by the Revenue is even larger.
6. In view of the aforesaid analysis and applying the ratio of oar own decision in the case of Chamundi Steel Castings (I) Ltd., we set aside the order impugned and remand the matter for de novo consideration to the jurisdictional Commissioner of Central Excise. It is brought to the notice of the learned Commissioner that under Section 3A(2), it is only the Commissioner who is entitled to consider the issue and pass an order fixing the annual capacity. Since we are not aware of any legal delegations of the said powers to a subordinate authority, therefore, the matter is being remanded back for re-consideration as per law.
7. The appeal succeeds by way of remand accordingly.
(Pronounced and dictated in the open court).