GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (5) TMI 500 - SUPREME COURT

2015 (5) TMI 500 - SUPREME COURT - 2015 (320) E.L.T. 3 (SC), 2015 (6) SCR 437, 2015 (8) SCC 519, 2015 (5) JT 634, 2015 (6) SCALE 612 - Recovery of excise duty without issuance of show cause notice - useless formality theory - Scope of section 11A - area based exemption was Nullified with retrospective effect - In the case of R.C. Tobacco Private Ltd. & Anr. v. Union of India & Anr. [2005 (9) TMI 80 - SUPREME COURT OF INDIA] Apex Court has upheld the withdrawal of retrospective exemption - genera .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provisi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (2005 (9) TMI 80 - SUPREME COURT OF INDIA).

It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'us .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t the period of six months provided under Section 11-A would not apply.

When the Court was conscious of the principle laid down in J.K. Cotton [1987 (10) TMI 51 - SUPREME COURT OF INDIA] and explained the same in a particular manner while deciding the appeal in R.C. Tobacco [2005 (9) TMI 80 - SUPREME COURT OF INDIA], it cannot be argued that the judgment in R.C. Tobacco (supra) runs contrary to J.K. Cotton [1987 (10) TMI 51 - SUPREME COURT OF INDIA] - Decided against assessee. - Civil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n the North-Eastern region, the said region was made tax free zone for a period of ten years giving incentives to those who wanted to establish industries in that region. Pursuant thereto, the Notification dated July 08, 1999 was issued granting new industrial units that had commercial production on or after December 24, 1997 and certain types of industrial units that increased their installed capacity after that date, exemption on goods cleared from units located in growth centres and integrate .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g cigarettes, chewing tobacco etc.). 4) This withdrawal Notification was challenged by the appellant by filing the writ petition in the High Court of Gauhati. The learned Single Judge dismissed the writ petition. However, appeal preferred by the appellant was allowed by the Division Bench vide judgment dated December 03, 2012. In nutshell, the High Court held that the principal of Promissory Estoppel shall apply and once a promise was given by the Union of India assuring that no such duty would .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

effected from retrospective effect. Effect thereof was to withdraw the benefit given under the Notification issued earlier. Validity of Section 154 was questioned and the issue was considered by this Court in R.C. Tobacco Private Ltd. & Anr. v. Union of India & Anr. (2005) 7 SCC 725 This Court upheld the constitutional validity of the aforesaid provision and repelled the challenge so laid. The effect was to disentitle the appellant and other similarly situated from getting any such benef .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of altogether, respondent No.1 herein passed recovery order dated June 03, 2003 for recovery of a sum of ₹2,93,43,244 (rupees two crores ninety three lakhs forty three thousand two hundred and forty four only) from the appellant, which was the benefit that had been drawn by the appellant for the period November 1999 till February 2001 in terms of the Notification No. 32 of 1999. By another order dated June 06, 2003 issued by respondent No.1, the appellant was directed to pay the excise dut .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

deposit entire duty amount within a period of thirty days. This order of pre-deposit was challenged by the appellant by filing four writ petitions in the High Court of Gauhati. The learned Single Judge of the High Court, however, dismissed these writ petitions vide orders dated May 18, 2004. The appellant carried this issue of pre-deposit to a higher forum in the form of writ appeals before the Division Bench of the said Court. Interim orders dated June 11, 2004 were passed in the writ appeals .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

adjudicating authority. After this final order was passed by the Commissioner (Appeals), writ appeals of the appellant before the Division Bench were disposed of as infructuous in view of the fact that the Commissioner (Appeals) had passed an order on merits and, therefore, no cause survived which required further adjudication in those appeals. 7) Insofar as the order of the Commissioner (Appeals) is concerned, both the appellant as well as the Revenue felt aggrieved thereby. The appellant was n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for short 'CESTAT') decided these appeals vide common order dated My 28, 2007. It reversed the orders of the Commissioner (Appeals), which resulted in allowing the appeal filed by the Revenue and dismissing the appeal preferred by the appellant. A perusal of the judgment of the CESTAT would reveal that it has primarily referred to the judgment of this Court in R.C. Tobacco and held that the matter stood concluded by the said judgment. The appellant challenged the order of CESTAT by filin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

enged both the orders dated December 01, 2011 passed in the Tax Reference as well as the order dated June 05, 2012 passed in the Review Petition. 8) From the brief narration of the background facts mentioned above, it is apparent that the frontal attack of the appellant against the recovery orders passed by the respondents is premised on the plea that no such recovery proceedings could be initiated without a show-cause notice under Section 11-A of the Excise Act. The appellant has also taken a p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pointed out, in R.C. Tobacco (supra), this Court has already upheld the validity of Section 154 of the Act of 2003 thereby taking away the benefit of Notification No. 32 of 1999 retrospectively insofar as excisable goods falling under Chapter 24 are concerned. Conscious of the position that judgment in R.C. Tobacco (supra) stares at the face of the appellant, Mr. Soli Sorabjee, learned senior counsel who appeared for the appellant, has also made an endeavour to show that the said judgment in R.C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

her there is a conflict between the three Judge Bench judgment in J.K. Cotton (supra) and R.C. Tobacco (supra)? First issue is the basis for the judgment of the High Court. 10) For answering this issue, it would be necessary to take into account the complete implication thereof with reference to the nature of recovery orders passed by respondent No.1, challenge thereto before the Commissioner (Appeals) and interim order of pre-deposit passed by the Commissioner (Appeals) on March 31, 2004 as als .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

unded to the appellant. Simultaneously, another order dated June 06, 2003 was issued asking the appellant to pay duty on the ground that such goods were no more exempted from payment of duty. In the appeals which were filed by the appellants before the Commissioner (Appeals) challenging the aforesaid orders, the Commissioner passed interim orders dated March 31, 2004 directing the appellants to pay the amount demanded by the aforesaid orders. This order dated March 31, 2004 of the Commissioner ( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fund of any amount could be made and no refund of the amount already paid could be claimed. It was also argued that the matter of recovery of amounts was pending consideration of Central Board of Excise and Customs (CBEC) as well as in the Gauhati High Court. All these issues were considered by the Commissioner (Appeals), who gave his prima facie view thereupon observing that the appellants did not have strong prima facie case on merits resulting into the direction to deposit the entire amount w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e from the record that the learned Single Judge, while dismissing the writ petition, dealt with these issues, which touched upon the merits of the main issue. That is the reason that the order dated May 18, 2004 of the learned Single Judge dismissing the writ petition of the appellant runs into 37 pages. Nevertheless, we find that the observations which were made by the learned Single Judge on the issues raised were only prima facie in nature and the prime focus of the judgment rested on the cor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ta. The order of the learned Single Judge dismissing the writ petition was challenged before the Division Bench and the Division Bench passed interim orders in the writ appeals not to dismiss the appeals preferred by the appellant for non-deposit of the duty. In this backdrop, appeals were heard and appellant even partly succeeded. After the order of the Commissioner (Appeals) dated June 15, 2005 deciding the appeals partly in favour of the appellant, the writ appeals which were pending before t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

atory and this order of the Commissioner (Appeals) has been set aside by the CESTAT. The Reference petition against the order of CESTAT, though wrongly is dismissed on the ground of res judicata, the impugned order shows that it has mentioned that such show-cause notice was not mandatory as held by the learned Single Judge by order dated May 18, 2004. 14) Learned senior counsel appearing for the appellant as well as learned Attorney General agreed that in this situation this Court may decide the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

llant and giving the appellant herein right of hearing. He also submitted that merely because vires of Section 154 of the Act of 2003 were upheld by this Court in R.C. Tobacco (supra) could not be a ground to dispense with the aforesaid mandatory requirements of principles of natural justice. His further submission was that 'no prejudice' principle adopted by the CESTAT amounted to erroneous approach. He sought to draw a fine distinction in this behalf by contending that the Authority pa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

finds that it will be a futile exercise. 16) As a pure principle of law, we find substance and force in the aforesaid submission of Mr. Sorabjee. No doubt, the Department was seeking to recover the amount paid by virtue of Section 154 of the Act of 2003 which was enacted retrospectively and the constitutional validity of the said Section had already been upheld by this Court in R.C. Tobacco (supra) at the time of issuance of notice for recovery. Further, no doubt, the effect of the said amendme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f natural justice is to be fulfilled. This Court in Collector of Central Excise, Patna & Ors. v. I.T.C. Limited & Anr. (1995) 2 SCC 38 has held that show-cause and personal hearing is necessary before saddling an assessee with additional demand. It is also trite that when a statute is silent, with no positive words in the Act or Rules spelling out need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called 'naturalist' approach to the phrase 'natural justice' and is related to 'moral naturalism'. Moral naturalism captures the essence of commonsense morality - that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua; and (ii) opportunity of being heard .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

This Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 : AIR 1978 SC 851 explained the Indian origin of these principles in the following words: Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system . 21) Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth Centuries A.D. called it 'jura naturalia', i.e. natural law. 22) The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ocedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. 23) This aspect of procedural fairness, namely, right to a fair hearing, would mandate what is literally known as 'hearing the other side'. Prof. D.J. Galligan On 'Procedural Fairness' in Birks (ed), the Frontiers of Liability (Volume One) (Oxford 1994) attempts to provide what he calls 'a general .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and, as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham A Treatise of Judicial Evidence (London 1825), who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that the said theory developed by Bentham can be transposed to other forms of decision making as well. This juris .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ned from time to time by the law makers of the society. Each case is an instance in achieving the general goal, and a mistaken decision, whether to the benefit or the detriment of a particular person, is simply a failure to achieve the general good in that case. At this level of understanding, judgments of fairness have no place, for all that matters is whether the social good, as expressed through laws, is effectively achieved. Galligan also takes the idea of fair treatment to a second level of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ading to good governance. He supports Galligan in this respect and goes to the extent by saying that it is same as ensuring dignity of individuals, in respect of whom or against whom the decision is taken, in the following words: The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is, as Galligan clearly explains, an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging a per .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in bo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural jsutice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

non-observance of which invalidates the exercise of power. In Cooper v. Sandworth Board of Works (1863) 14 GB (NS) the Court laid down that: '...although there is no positive word in the statute requiring that the party shall be heard, yet justice of common law would supply the omission of Legislature . Exhaustive commentary explaining the varied contours of this principle can be traced to the judgment of this Court in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasijudicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. 21. In Chairman, Board of Mining Examination v. Ramjee, (1977) 2 SCC 256, the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. 22. In Institute of Chartered Accountants of India v. L. K. Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Leak Disaster Case) and C. B. Gautam v. Union of India, (1993) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

erties under Section 269-UD of the Income Tax Act, 1961. It was further observed that the very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell leads to the conclusion that before such an imputation can be made against the parties concerned they must be given an opportunity to show-cause that the under valuation in the agreement for sale was not with a view to evade tax. It is, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248 also the application of principle of natural justice was extended to the administrative action of the State and its authorities. I .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as so. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e violated. To the same effect are the following judgments: a) U.O.I. & Ors. v. Madhumilan Syntex Pvt. Ltd. & Anr. (1988) 3 SCC 348 b) Morarji Goculdas B&W Co. Ltd. & Anr. v. U.O.I. & Ors. (1995) Supp 3 SCC 588 c) Metal Forgings & Anr. v. U.O.I. & Ors. (2003) 2 SCC 36 d) U.O.I. & Ors. v. Tata Yodogawa Ltd. & Anr. 1988 (38) ELT 739 (SC) :: 1988 (19) ECR 569 (SC) 29) Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nds upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ost-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on. 31) We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

clusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578 at 1595, who said that a 'breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court dos not act in vain'. Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority (19 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iolation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so hel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be pass .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in the case of Managing Director, ECIL (supra) itself in the following words: 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not alrea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is onl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco (supra). 37) To recapitulate the events, the appellant was accorded certain benefits under Notification dated July 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'useless formality theory'. 38) In Escorts Farms Ltd. (Previously known as M/s. Escorts Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division, Nainital, U.P. & Ors. (2004) 4 SCC 281, this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to comp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y. 40) With this we advert to the last submission of Mr. Sorabjee that the judgment in R.C. Tobacco (supra) (which is a two Judge Bench decision) is in conflict with the three Judge Bench judgment in J.K. Cotton (supra). This argument is not even open to the appellant for the simple reason that the judgment in J.K. Cotton (supra) was specifically taken note of and discussed in R.C. Tobacco (supra). Paragraph 13 of the judgment in R.C. Tobacco (supra) would reflect that the appellant therein had .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pertinent was another submission, which is relevant for our purpose, that the demand which was raised could not be sustained as it was made without issuing any show-cause notice and was in contravention of Section 11A of the Act. In support of this view, few judgments, including J.K. Cotton (supra), were relied upon. The Court, however, did not find any merit in the aforesaid submissions and dealt with the issue as under, duly taking note of the judgment in J.K. Cotton (supra): 40. In J.K. Cotto .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ourt held that the amended Rules 9 and 49 would take effect subject to Section 11-A. The decision is distinguishable. The circumstances in which the Court held that the demands for duty could only be limited to six months prior to the amendment was unquestionably different from those present in the case before us. What we have to consider here is whether the benefit granted in 1999 could be withdrawn in 2003. Besides, the Court in J.K. Cotton Spg. & Wvg. Mills Ltd. case rejected the contenti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version