TMI Blog2014 (10) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... own order which is contrary to law. We have to take note of the fact that at the time of hearing the stay application also, the matter had been heard in great detail in view of the large amount of Revenue involved. Therefore, it would not be appropriate for us to sit in judgment over the conclusion reached by the Tribunal at the time of hearing the stay application that in this case there is no need to remand the matter to the Commissioner for non-observance of principles of natural justice. In fact in cases like this which take a lot of time for hearing, it may always be appropriate to remand the matter at the time when stay application is heard so that the time spent for conducting the final hearing and stay application can be preserved for hearing other matters especially in view of the fact that Bangalore Bench has been consistently having very high pendency throughout a period of 3 or 4 years in the past. When this tribunal did not do so at the time of hearing the stay application and chose to consider the case on merits, it would not be appropriate to take a contrary view now. - Decided in favour of appellant. - C/1932-1938, 2027-2031 and 2199 & 2280/2012 - Interim Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were given to the appellants. In the meanwhile, the appellants made detailed submissions which included rebuttals/rejoinders to the points which were raised by the learned special counsel for the Revenue who had appeared before the Commissioner for the Revenue. He submitted that when the rejoinder/rebuttal was received by the Commissioner on 27-3-2012, the question arises how the Commissioner could consider all the points and pass two impugned orders on 30-3-2012 and 31-3-2012. He submits that he can show that by pointing out the points taken up in the rejoinder and the observations of the Commissioner that the rejoinder/rebuttals have not been considered. He also submits that the statements contrary to the findings in the investigation/show cause notice made during cross-examination have been rejected simply by observing that it is only an afterthought and a retraction of earlier statement. At this stage, he also submitted that despite this, the appellants would prefer that the Tribunal consider all the points and pass an order even though it may amount to an adjudication in respect of certain points but since there was a long hearing and considerable amount of time already has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment, the method of passing the order creates serious suspicion in my mind about the bona fide exercise of the powers. The respondent No. 1 concluded the hearing on May 31, 1985 at about 1.30 p.m. in the evening and it is claimed on behalf of the respondents that respondent No. 1 proceeded to Delhi by aircraft and reached there by about 8.00 p.m. The respondent No. 1 claimed that he had telephonically informed his stenographer to remain ready to take dictation and dictated the order till 11.30 p.m. and continued the same on the next day from 7.00 a.m. till 11.45 p.m. The respondents claim that the order was signed by respondent No. 1 at 11.45 p.m. on June 1, 1985. It is impossible to accept the claim made on behalf of respondent No. 1 in this behalf. In the first instance, it is physically impossible for any human being to dictate an order running into 130 pages within such a short time. Secondly, it is difficult to believe that respondent No. 1 would fly back to Delhi and straightway proceed to dictate the order for about three and half hours at night and for the whole day on June 1, 1985 and would complete dictation and signing of the order late at night at 11.45 p.m. June 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit. It is futile, in these circumstances, for Shri Dalal to suggest that reliance should be placed on the affidavit of Shri K.L. Desai that the order was dictated for day and night by respondent No. 1. It surpasses my imagination as to how respondent No. 1 could have dictated the order for such long hours and how his stenographer could have transcribed and made it ready for signing of respondent No. 1 at midnight. As Shri Dalal persisted in his submission that respondent No. 1 could have dictated the order and could have signed the transcribed order before midnight, I enquired from the learned Counsel as to whether the respondents would show me the original order signed by respondent No. 1. Shri Dalal took instructions from the officers who were present in Court and produced for my perusal a part of the order which is signed by respondent No. 1. This part of the order is from the stage where the findings are recorded. I enquired from Shri Dalal as to where is the remaining portion and Shri Dalal says that it is not available on the file. In this state of affairs, I took the entire file including the part of the order on record and marked it as Ex. A collectively. On perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the mind that the whole process was pre-determined. Such a feeling would destroy the confidence not only of the citizens but also of the Courts in quasi-judicial authorities. It would be appropriate in this connection to refer to the decision of the Supreme Court in the case of Gullapalli Nageswara Rao and Others v. Andhra Pradesh State Road Transport Corporation and Another reported in AIR 1959 SC 308 where Mr. Justice Subba Rao, as he then was, referred with approval to the observation of Lord Cranworth in 10 ER 824 : A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other. In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent. The learned Judge also referred to the observations of Lord Hewart Chief Justice in 1924-1 KB 256 : It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. What is the inference to be drawn? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it? Is it that he would have taken too much pain to finish his work or is it that he would have cause it to be written by somebody else? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as statement of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after conclusion of the hearing? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitutde. Another lacuna is that he imposed a huge penalty and fine without issuing a show cause notice. To say that he did it for helping the defaulter is too far-fetched. The appellate authority which may be persuaded to set aside such an order on that ground could as well direct the authority to pass a fresh order after issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the paper books, it was found that after the personal hearing was held on 20-2-2012, at the end it was noted by the learned Commissioner that the learned special counsel for the Revenue would complete his oral submission on 22-2-2012 and counsel for the assessee would commence the rejoinder from 26-2-2012 onwards. Accordingly we find that on 22-2-2012, the special counsel for the Revenue completed his submissions and thereafter the rejoinder and oral submissions started on 26-2-2012. We notice that on 26-2-2012, rejoinder submissions were started from 11 am to 5 pm, on 4-3-2012 from 11 am to 5 pm, on 5-3-2012 from 11 am to 5 pm, on 6-3-2012 from 11 am to 5 pm, on 7-3-2012 from 10 am to 12 noon and on 8-3-2012 from 2 pm onwards. This shows that the rejoinder/oral submissions were heard for many days by the Commissioner. On 8-3-2012, in the last paragraph the Commissioner has made the following observations which are reproduced below for better appreciation :- The ld. Counsel for the assessee thereafter stated that he does intend to give an oral rejoinder to the submissions made by the ld. Special counsel for DRI on spare parts SCN and that he would submit a written rejoinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where Revenue is not represented, the Revenue was also represented. Quite often we also take notes during the hearing and pass orders based on our notings thereafter and our notes are not made available to the parties. Some times we may ask for written submissions and sometimes not. In this case the Commissioner has gone out of the way to provide soft copies of records of personal hearing so that parties do not have any grievance. In this case he has gone an extra mile and has not only prepared detailed records of personal hearing but has also made them available in the form of soft copies. That being the position if the Commissioner has taken into account the submissions made during the personal hearings and if that is shown it should be sufficient. In our opinion, at this stage, without hearing all the details and without finding out whether all the points have been covered or not, it would be inappropriate to take a view and remand the matter to the learned Commissioner and that would not be delivery of justice at all. When such detailed hearings have taken place, only for the purpose of submission of rejoinders over a period of more than 4 days, just because Commissioner did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra and others [1988 (33) E.L.T. 48 (Bom.)]. We have also heard the learned Special Consultant in this context. After considering the submissions, we are not inclined to take recourse to the short-cut of remand suggested by the learned counsel inasmuch as both the orders passed by the Commissioner are found to have elaborately dealt with the substantive issues. At this stage, we must proceed to deal with the stay applications only. 12. In our opinion, this would show that even at the time of hearing stay application itself, the Tribunal had decided that there is no need to remand the matter back to the Commissioner on the ground of non-observance of principles of natural justice. This order has not been challenged and therefore, has attained finality. If we now take a view straightaway that principles of natural justice have not been observed without considering the facts and circumstances in detail we will be virtually reviewing our own order which is contrary to law. We have to take note of the fact that at the time of hearing the stay application also, the matter had been heard in great detail in view of the large amount of Revenue involved. Therefore, it would not be approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of last hearing on 8-3-2012, according to the learned counsel himself, the same was sent on 17-3-2012. In any case, it may not be/cannot be the case of the appellants that they did not know what were the submissions made in the personal hearing and the submissions on behalf of the Revenue had ended on 22-2-2012. The observations made hereinabove are relevant to the order passed in relation to the products which involves substantial revenue of more than ₹ 900 crores. (this is the amount finalized by the Commissioner and if the show cause notice taken into consideration it would be around ₹ 1600 crores). As regards parts, it was submitted that final submissions were made by the Revenue on 6-3-2012 and rejoinder was made on 8-3-2012. The amount involved in respect of parts is about ₹ 36 crores. At this stage, we have to take note of the fact that certain issues will be common in both the cases and therefore, in the case of parts alone, the time taken for passing orders would be less than the case of products. At this stage learned counsel also fairly agreed that it is not their case that just because records of personal hearing were not given or approved c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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