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2016 (2) TMI 18 - GUJARAT HIGH COURT

2016 (2) TMI 18 - GUJARAT HIGH COURT - 2016 (338) E.L.T. 507 (Guj.) - Validity of order directing to make pre-deposit while Remanding back the proceedings - The adjudicating authority proceeded ex-parte and passed the final order confirming the duty demand with penalty and interest. - Tribunal on the ground that twice the proceedings were earlier adjourned, refused to grant any further time and while remanding the proceedings to the adjudicating authority imposed the said condition of depositing .....

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the case, it appears that the petitioners were not duly served with the notices of hearing of the show cause notice proceedings and hearing was revived after long gap of nearly 9 years. In the meantime, factory of the petitioners was closed down. Primarily on such grounds, we are inclined to set aside the condition imposed by the Tribunal of depositing a sizable sum of ₹ 50 Lacs which is made a precondition for fresh disposal of the show cause notice by the adjudicating authority. - In .....

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AH, ADVOCATE, MR. S S IYER, ADVOCATE For The Respondent : MR RJ OZA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioners have challenged an order dated 6.2.2014 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT for short) under which while remanding the proceedings back to the adjudicating authority, Tribunal imposed a condition of depositing sum of ₹ 50 lacs on the petitioners. 2. The petitioners were served with show cause notice dated 14. .....

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erest. This order the petitioners challenged before the Tribunal and requested for remand of the proceedings since the order in original was passed ex-parte. On the date of hearing on 6.2.2014, in fact, the petitioners requested for adjournment. However, the Tribunal on the ground that twice the proceedings were earlier adjourned, refused to grant any further time and while remanding the proceedings to the adjudicating authority imposed the said condition of depositing sum of ₹ 50 lacs on .....

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file reply to the show cause notice. It is also claimed in the grounds of appeal that impugned order is issued exparte, without giving a single hearing to the appellant and they were not given time for presenting their case. On perusal of the impugned order, we find that the adjudicating authority has recorded that he had granted personal hearing to the appellant and hearing notices were returned to the office of the adjudicating authority by the postal authority with remarks 'Left/Returned .....

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cate that they had not received show cause notice. In view of this, we hold that appellants herein were non-cooperative with the adjudicating authority. At the same time, there being a claim of violation of principles of natural justice, in the interest, in our view, the appellants should be granted an opportunity for filing reply to the show cause notice and being heard by the adjudicating authority. 5. In view of the above, there being noncooperation from the appellant even before us, which ca .....

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nts herein are also directed to file reply to the show cause notice within four weeks from today, stating their defence before adjudicating authority and also the address for communication. Subject to such compliance of depositing the amount being reported, adjudicating authority shall take up the matters for disposal after following the principles of natural justice. Stay petitions and appeals allowed by way of remand . 3. Counsel for the petitioners drew our attention to the decision of Divisi .....

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riwala Rayons & 1 V/s. Commissioner of Central Excise and Surat and Anr. 4. Learned counsel, Shri R.J.Oza, for the Department on the other hand pointed out that even after service of the show cause notice, petitioners had not filed any reply. Notices were dispatched to the factory address given by the petitioners. Since 2004, petitioners are facing proceedings for recovery of unpaid excise duties for a sum of ₹ 4 crores (rounded off) with matching penalty and interest. Tribunal under S .....

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t thinks fit, confirming, modifying, or annulling the decision or order appealed against or refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The terminology directions in the aforesaid provision cannot be restricted to the directions of the lower authorities to do de novo adjudication proceedings in a particu .....

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y because of the lapse on the part of the assessee and if it is found by the Appellate Tribunal that before the original adjudicating authority the assessee has not cooperted like in the present case, however, the assessee is to be given additional opportunity, the Tribunal may issue direction directing the appellant assessee to deposit some amount while remanding the matter to the original adjudicating authority and before his case is considered on merits by the original adjudicating authority .....

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d to be passed because of the reasons which are not attributed to the assessee and/or because of any error and/or fault on the part of adjudicating authority, the Tribunal may not issue such direction of deposit. However, to say that the Appellate Tribunal lacks total jurisdiction of issuing any such direction of deposit of some amount while remanding the matter to the original adjudicating authority for de novo adjudication under Section 35C of the Act, cannot be accepted . 6. Sub-section (1) o .....

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btedly the Tribunal has wide powers while disposing of appeal before it. In the process of directing the authority to re-decide the case, Tribunal may also give directions as found fit. It is, therefore, clear that any order of remand that the Tribunal may pass does not need to be unconditional. It is well within the jurisdiction of the Tribunal to impose suitable conditions as may be found necessary in the facts of the case. Depositing certain amount as a pre-condition to such remand therefore .....

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