TMI Blog2005 (7) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... but the Collector Central Excise (Appeals) disallowed the exemption. That order was challenged before the CEGAT by the petitioners and Special Bench of the CEGAT by an order dated 19th March 1990 [1990 (49) E.L.T. 431 (Tribunal)-] held that the product is insecticide. The Department preferred an Appeal No. 4817/90 before Hon'ble Supreme Court challenging the order of the CEGAT. The Appeal was dismissed by the Supreme Court by an order dated 28-2-94 [1994(70) E.L.T. A155 (S.C.)]. Therefore, it is no more in dispute that the product is insecticide and is exempted from Excise duty. 2. The petitioners submitted 15 refund claims different periods from 27th September 1979 to 28th February, 1994 for different amounts paid towards the excise duty from time to time as required by the department. Total claim is for Rs. 13,17,34,703.65. The Petitioners contended that personal hearing was given by the Respondent Nos. 3, C.P. Goel, the then Assistant Collector (Excise) to the Petitioners and they were also represented by their counsels. After hearing the Petitioners and the representative of the Department, the Assistant Collector (Excise) passed an order dated 22nd March, 1995, whereby he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was passed on to the customers the amount could be refunded only by credit to the Consumer Welfare Fund. it is contended that alleged order dated 22nd March, 1995 was infact never passed nor it was communicated to the Petitioners and unless, the order is communicated to the Petitioners, there are not entitled to claim any benefit out of the same. It is also contended that as the said order was not communicated to the Petitioners by the Department nor the Petitioners have disclosed the source from where they have come to know about the said order, they are not entitled to any relief from this court on the basis of alleged order dated 22nd March 1995. According to the Respondents, the Petition is devoid of any merit and is liable to be dismissed. 5. Heard learned counsels for both the parties. We also called original record for our perusal. 6. Admittedly from 1979, the Petitioners had claimed that their product is exempted from excise duty and they had also made some payments under protest from 21-... -79 onwards. There was a long drawn litigation before the different fora as to whether the said product was exempted from excise levy or not. By the order dated 19th March, 1990, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass the order without any external control. He also contended that once the Respondent No. 3 who was the competent authority, heard the parties and after going through the record, had passed the order on 22nd March, 1995, the said order was final, effective and binding on the parties. Communication of the said order to the Petitioners was irrelevant. He further contended that after the final order was passed, it could (sic) subject to the pre-audit by another officer of ... (sic) Department. According to him such pre-audit ... (sic) passing of the judicial order by the competent authority is not permissible under our judicial system and has to be ignored. 8. Record reveals that the said order dated 22-3-95 along with the complete record was submitted to the Assistant Commissioner (Audit) for pre-audit. Incidentally during the relevant period, the Respondent No. 2 - H.S. Sharma himself was the Assistant Commissioner (Audit) and after pre-audit of the said order and the record he passed the impugned order dated 12th October, 1995. Admittedly, the Respondent No. 2. H.S. Sharma had not heard the Petitioners or their counsel and without hearing them, he passed the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments, they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party." 10. Relying on the above observations, in a similar case in Rewa Gases Pvt. Ltd. v. Assistant Collector of C.Ex., Satana - 2002 (140) E.L.T. 18 (M.P.) the Madhya Pradesh High Court has observed as follows: "It is not in dispute that the proceedings before the Assistant Collector for adjudicating the claim for refund of excise duty are of quasi judicial nature. He must act independently and impartially. His discretion cannot be controlled by the directions of the superiors in that very case. The procedure of pre-audit of such a judicial discretion is unbeard of. It amounts to pulling the strings from the backdoor and renders the adjudicating officer as a puppet in the hands of others. The tax-collector is already considered as leaning in favour of the administration and if his quasi judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim, the concerned Assistant Collector may get the record about the payment of duty, about the passing on of the incidence of the duty to the customer or otherwise verified from his office or even from the Accounts or Audit Department, But if after being satisfied that claim is justified, he passes the order, it becomes final. Thereafter, there can not be any pre-audit of the order passed by the Assistant Collector. 12. On careful perusal of the original record, we find that the concerned officers made the notings on the basis of claim and the office record. Not only this before passing the impugned order dated 22nd March, 95, the Respondent No. 3-C.P. Goel had directed that file be submitted to the Additional Director (Cost) to ascertain whether the assessee had charged and recovered the element of duty from their customers for the period from 27-9-79 to 31-12-83 and as per his directions, the file was infact submitted to Additional Director (Costs). The Office Note dated 24-1-1995 reveals that the file was returned by Additional Director (Costs) with the following remarks: "It appears from the examination of the above said records that the assessee had not charged and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the counsel of the ministers. It is true that in the Government Departments files move upwards with the notes made by the officers at the different levels for approval. Sometimes even after approvel, on reconsideration, orders are not actually issued and communicated to the cocerned. In the Government Departments policy and administrative decisions are taken which may always be reconsidered and changed. Even, a decision taken by the minister heading the Department, may be considered by the Cabinet taking into consideration all the pros and cons of the matter. Not only this, sometimes even cabinet decisions, are reconsidered. Therefore, merely because certain notings are approved at certain levels in the Government, it can not be said that the order is passed. Only after the formal orders are issued for information of public or communicated to the concerned party, such orders become final and binding. 14. However, practice followed in the Government Departments in the administrative on policy matters cannot be applicable to the judicial or quasi judicial proceedings. An authority exercising judicial powers or quasi judicial powers has to adjudicate the matter before him indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
