Customs, Excise and Gold Tribunal - Delhi
Harichand K. Khanna & Yogesh Khanna vs Cce on 10 December, 2002
Equivalent citations: 2003(85)ECC450
JUDGMENT
K.K. Usha, J. (President)
1. The reference before the Larger Bench is in view of a preliminary objection raised by the appellant when the appeal came up for hearing before a bench of this Tribunal. The appeals are directed against an order dated 24.2.94 passed by the Collector of Central Excise and Customs, Surat on adjudicating a show cause notice dated 1.8.91.
2. The preliminary objection raised by the appellant was that the copy of the order received by the appellant did not bear the signature of the Collector. It showed as "Sd 24.2.94" over the name of the Collector and attested by the Superintendent of Central Excise & Customs, Headquarters, Surat. According to the appellant the show cause notice received by them also appeared likewise. The Learned Counsel for the appellant placed reliance on Final Order No. A/431/91-NRB dated 8.8.9t passed by a two Member Bench of this Tribunal In Appeal No. E/3444/90-NRB Chander Lakshmi Tempered Glass Co. (P) Ltd. v. CCE, Chandigarh in support of the preliminary objection raised by him. The above decision was rendered following an earlier decision of this Tribunal in Garden Reach Shipbuilders & Engineers Ltd. v. CCE, Calcutta 1987 (14) ECC 245 (T): 1987 (31) ELT 545. The Bench before whom the preliminary objection was raised was not able to persuade themselves to take a hard-and-fast rule following the view taken in the cited cases. It was under these circumstances the issue was referred for consideration of the Larger Bench.
3. It was submitted on behalf of the Revenue that the appellant cannot be permitted to raise the issue with regard to show cause notice at this stage as no such objection was taken in their reply to the show cause notice nor before the adjudicating authority. Learned Departmental Representative sought to rely on a decision of the Madras High Court reported as of ACC Tuticorin v. Court of the Consumer Dispute Redressal Forum, 2000 (121) ELT 604 (Mad) and a decision of this Tribunal in the case of Sangameshwar Pipe & Steel Traders v. CCE, Belgaum, 2002 (80) ECC 213 (T): 2002 (141) ELT 252 in support of the above contention. Learned DR also contended that If the draft show-cause notice had been approved by the adjudicating Commissioner in the file and thereafter attested fair copy is issued to the noticee it will not vitiate the proceeding. He placed reliance on two decisions of this Tribunal reported in Ghanshyam Agarwal v. CCE, Allahabad, 1994 (71) ELT 373 and Montana Valves & Compressors (P) Ltd., v. CC, Mumbai, 2000 (116) ELT 220.
4. We have perused the original file which was made available by the learned DR. From the notings in the file it is seen that the draft show cause notice after necessary correction/amendment etc. was put up for approval of the Collector and the Collector has approved the same on 1.8.91. From the cyclostyled copy of the show cause notice kept in the file it is seen that the copy was compared with the original on 1.8.91. It is true that the original show cause notice with signature of the Commissioner is not seen in the file; but the file would indicate that the show cause notice had been issued under the authority of the Commissioner.
5. It is true that the final order dated 24.2.94 served on the appellant did not contain the signature of the Commissioner but it was a copy attested by the Superintendent.
On going through the file we find that the Commissioner had signed in the final draft order after making necessary correction on 24.2.94. It is contended by the learned Counsel for the appellant that this draft did not contain pages upto 31. We do not find merit in this objection. We find from page 31 onwards the finding starts. Upto page 31 the order contains the statement of facts etc. It is clear that the draft was prepared from Page 1 onwards, that is why, findings start from Page 31. There was no correction to Pages 1 to 30. The file would clearly show that after the corrections in the draft are carried out, from Pages 31 onwards those pages are placed below Page 30 in the final form of the order. In the nature of the file we are convinced that the Commissioner has signed in the final draft after the draft of the final order was prepared. It is also seen that the copy of the final order served on the noticee is without any change from the final draft order signed by the Commissioner on 24.2.94.
6. We will now proceed to discuss the decisions relied on by the learned Counsel for the appellant. In Chander Lakshmi Tempered Glass Co. Pvt. Ltd. v. CCE, Chandigarh the Tribunal took the view that the impugned order not having been signed by the Adjudicating Authority was not a valid order. In the above case the order was signed by the Collector on 16.4.90 and on account of his transfer the copy of the order approved by the Collector was issued after attestation. It was pointed out that the impugned order was an exact copy of the draft order approved by the Collector before his transfer. The contention raised by the assessee was accepted by the Bench following an earlier decision of the Tribunal in Garden Reach Shipbuilders & Engineers Ltd. v. CCE, Calcutta, 1987 (14) ECC 245 (T): 1987 (31) ELT 545. When we examine the facts of Garden Reach Shipbuilders & Engineers we find that the facts are quite different from those available in Chander Lakshmi Tempered Glass Co. Pvt. Ltd. Paragraph 24 which is also quoted in Chander Lakshmi Tempered Glass Co. Pvt. Ltd. itself would show that the records of the case did not contain any order or copy of the order signed by the Collector himself. It is also relevant to note that in the above case personal hearing was not concluded on 18.10.82 and that the order is seen dated 13.10.82. Tribunal took the view that even if 13.10.82 is a mistake for 18.10.82, as contended by the Revenue, it has to be taken that the order was passed before final conclusion of the personal hearing. Therefore, in paragraph 24 of the order is was observed 'looking to the facts and circumstances of the case as a whole we consider that the so-called order of the Collector was not proper order'. We are afraid that the above decision of the Tribunal could not have been followed as an authority in the facts of the case in Chander Lakshmi Tempered Glass Co. Pvt. Ltd.
7. In J.K. Leatherite Pvt. Ltd. v. CCE, 1996 (83) ELT 467 on the facts it was found that the draft order signed by the Adjudicating Authority differed from the copy served on the party. It was also found that the copy of the order served on the party contained figures supplied by the appellant in response to the Department's letter of 25.4.90 sent after the Commissioner had relinquished charge on 17.4.90. It was therefore held that what was issued to and received by the assessee was not an order alleged to have been signed by the Commissioner on 16.4.90. This decision has also no application in the facts of the present case.
8. Om Prakash Arun Kumar v. Collector of Customs, 1993 (64) ELT 492 is of no help to the appellant to support its contention. The decision was only to the effect that the date on which the Additional Collector signed the order is the relevant date and not the date on which it was communicated to the party for the purpose of choosing the forum for appeal in the light of the amendment regarding provisions for appeal which came into effect pursuant to the assent given by the President to the Finance Bill of 1992. In the above order reliance was placed by the Tribunal on a decision of the Bombay High Court in Cosmic Radio v. Union of India & Another, 1983 (12) ELT 84. A contention was raised therein that a successor of the Assistant Collector of Central Excise who passed an order can change the order so long as it has not been communicated to the assesee. This contention was repelled by the High Court holding that once the order is signed by the officer concerned it comes into effect and communication is merely an administrative act. In the facts of the case before us we have already found that in the file the Commissioner had signed the corrected final draft order. Therefore, its further communication as attested by the superintendent can only be taken as an administrative act.
9. Yet another decision relied upon by the learned counsel for the appellant is Apple international v. CCE, Nhava Sheva, 2000 (120) ELT 671. In the above case apart from the fact that there was violation of principles of natural justice, the appellant being not given due opportunity, copy of the Impugned order served on the assossee was not signed by the Commissioner but that in attestation it is shown that he has signed the file copy. It is not clear from the order whether the Tribunal has examined the original file to verify whether it contained a copy of the order signed by the Commissioner. It is observed that an order of adjudication unless signed by the maker thereof, is not a valid document. The correctness of the above principle cannot be doubted. But the further question is if the order of adjudication has been, as a matter of fact, signed by the authority, the mere fact that the copy communicated to the assessee did not contain signature of the authority would affect its legality? In Richimen Silks Ltd. V. CC Hyderabad, 2001 (73) ECC 504 (T): 2001 (127) ELT 795, the above decision of the Tribunal has been followed but here also we find no discussion as to whether Tribunal has examined the original file and whether copy was signed by the adjudicating authority; Reliance was placed by the learned counsel for the appellant on yet another decision of the Tribunal in Ram Steel Rolling & Forging Mills v. CCE Mumbai, 2001 (127) ELT 305. In this case the copy of the order served has neither been signed by the adjudicating authority nor did the order indicate that It had been signed with an usual appellation Sd/-. It has been only attested by the Superintendent. In the background of the above facts it was held it is fundamental and axonometric that the order which is proposed by any public authority should bear the signature of he authority which had passed that order, Here it does not exhibit that the order has been signed by the appellate authority. In the absence of the same, it has not legal effect in the eye of law'. We are of the view that this decision is of no help to the appellant as the facts are entirely different. Here there was no material to show that the order was even signed by the adjudicating authority. It is not a case where the order has been signed by the authority but the copy served on the party did not bear his signature.
10. In Sandur Manganese & Iron Ores Ltd. v. CCE, Bangalore, 2001 (133) ELT 635, a show cause notice without signature of the Collector was held not valid under law. When we examine the facts of the above case, it is seen that the show cause notice which was served on the assessee was dated 7.10.94 and it was contained in one page. It did not bear the signature of the Collector but only the words SD/-and was attested under an illegible signature/Initial of one P.B. Naik with a rubber stamp marked below reading as 'Assistant Collector of Customs, Inland Container Depot, Bangalore 560046'. The DR was directed to produce office copy of the show cause notice. In compliance with the above direction a photo copy of a show cause notice was produced. It was dated 4.10.94. It bore initial of the then Collector in the office copy and it was in two pages. In view of the discrepancies, the Tribunal took the view that there can be a reasonable doubt as to whether the Collector has applied his mind and such a show cause notice Invoking extended period can be treated as valid notice. Reliance was placed on an earlier decision of the Tribunal in Punalur Paper Mills Ltd. v. CC, Cochin, 1987 (31) ELT 770. It was a case where notice was issued by the Assistant Collector at the instance of the Collector under Section 28 of the Customs Act as amended by Customs (Amendment), 1985. The show cause notice for a period beyond six months under that section has to be issued by the Collector. Admittedly the show cause notice was never signed by the Collector even though he had Issued a direction to the Assistant Collector to issue such a notice. The appellant further placed reliance on a decision of the Calcutta High Court in Ovatape Fibres Pvt. Ltd. v. CC, Calcutta, 1994 (74) ELT 509 In support of his contention on the show cause notice. It was a case where draft show case notice unsigned and undated was served on the assessee within the period of limitation. It was held that by serving such draft show cause notice, it cannot be taken that the show cause notice was served within the period of limitation as contemplated under Section 110(2) of the Customs Act, 1962. None of these decisions on show cause notice relied on by the appellant could apply to the facts of the present case as detailed in the earlier portion of this order.
11. We may now refer to three decisions arising under the Income Tax Act relied on by the appellant. In B.K. Gooyee v. CIT West Bengal, 1966 (62) ITR 109 it was held that notice under Section 34 of the Indian Income Tax Act, 1922 which did not contain the signature of the Income Tax Officer who issued it is invalid and since service of a valid notice is a condition precedent to the jurisdiction of the Income Tax Officer to take further proceedings under that section, all proceedings taken in pursuance of such a notice are Invalid. On an examination of this judgment, it can be seen that the above view was taken by the Court in the light of the provisions contained In Section 34 read with Section 63(1) of the Income Tax Act. Section 34 provides that the Income Tax Officer has to serve on the assessee a notice. Section 63(1) provides that a notice or requisition under the Act may be served, as if they were summons issued by a court, under the Code of Civil Procedure, 1908. Order 5 Rule 3 provides that every such summons shall be signed by the judge or such officer as he appoints and shall be sealed with the seal of the court. Order 5, Rule 10 provides that service of the summons shall be made by delivering or tendering a copy thereof signed by the judge or such officer as he appoints in this behalf and sealed with the seal of the court. Thus, a notice issued under Section 34 should contain the signature of the Income Tax Officer. There is no such provision regarding service of show cause notice in the Central Excise Act or Rules. Therefore, the ratio of this decision cannot be made applicable in the present case.
12. In Umashankar Mishra v. CIT Madhya Pradesh-l, 1982 136ITR 330 another decision of the Madhya Pradesh High Court it was held in the absence of the signature of the I ncome Tax Officer on the notice issued under Section 271 (1) (a) of the Income Tax Act, 1961, no proceedings against imposition of penalty can be taken. The above view was taken on the ratio of B.K. Goodyees' case. Same is the ratio of the decision in Commissioner of Income Tax v. Sattandas Mohandas Sidhi, 1998 Vol. 230 ITR 591 relied upon by the appellant.
13. Learned DR contended that the assessee cannot be heard to challenge the show cause notice at this stage on the ground that the copy served on it was not signed by the Commissioner. He placed reliance on a decision of the Madras High Court in ACC Tuticorin v. Court of the Consumer Disputes Redressal Forum, 2000 (121) ELT 604 and a decision of this Tribunal in Sangameshwar Pipe & Steel Traders v, CCE, Belgaum. In the decision of Madras High Court, a learned Single Judge took the view that since the writ petitioners had submitted to the jurisdiction of Consumer Forum and participated in the process of enquiry it cannot later challenge the jurisdiction of the forum and its competency to maintain the matter. In Sangameshwar Pipe & Steel Traders a Bench of this Tribunal held that objection regarding jurisdiction should have been taken when the show cause notice was served on them. Since the assessee had not taken objection even before the appellate authority it cannot be permitted to raise the issue before the Tribunal for the first time. The learned DR relied on two other decisions of this Tribunal in support of his contention that even if the copy of the show cause notice served on the assessee is not signed by the Commissioner, the notice cannot be treated as invalid if the office copy of the show cause notice had been signed by the Commissioner. In Ghanshyam Agarwal v. CCE, Allahabad, 1994 (71) BIT 373 (T) it was found that the Additional Collector had taken the decision and passed orders in the file and the Superintendent issued an order for 'Additional Collector'. Tribunal took the view that it does not constitute an irregularity or an infirmity of a type which would vitiate the proceedings. In Montana Vales & Compressors P. Ltd. v. CC, Mumbai, 2000 (116) ELT 220 (T) the Tribunal took the view that the office copy of the show cause notice was initialled by the Commissioner and the fact that the copy served on the assessee was one attested by the Assistant Commissioner, would not invalidate the same.
14. In the light of the above discussion we are inclined to take the view that a show cause notice or an adjudication order cannot be held invalid only for the reason that the copy of the notice or order served on the assessee was only an attested copy, if the notice was as a matter of fact issued under the authority of the proper officer and if the adjudication order has been signed by the adjudicating authority. But, we may hasten to observe that in order to obviate any suspicion or apprehension on the part of the assessee who receives the notice/order resulting in unnecessary litigation it is always advisable that copy served on him bears the signature of the authorized officer.
15. In the facts of the case we find that the original show cause notice and been approved and signed by the Commissioner and that the final draft of the order impugned which is available in the file is also signed by the Commissioner. The above final draft is identical to the copy of the order served on the assessee. Under these circumstances neither the show cause notice nor the order impugned can be challenged by the assessee on the ground that the notice or the order served on him did not contain the signature of the Commissioner, As far as the show cause notice is concerned it has to be noted that no objection was raised by the assessee on the above ground either in his reply to the show cause notice or before the appellate authority. For this reason also challenge against the show cause notice on the above ground cannot be entertained at this stage.
16. We answer the reference as above and send back the matter for consideration on merits by the referring Bench.