TMI Blog2015 (8) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of such deposit, the adjudicating authority will decide the case afresh in de novo adjudication. Accordingly, the adjudicating authority shall decide the case afresh, de novo, after providing all relied upon documents to the petitioners and after extending them an opportunity of personal hearing. - SPECIAL CIVIL APPLICATION NO. 15279 of 2014 - - - Dated:- 20-8-2015 - MS. HARSHA DEVANI and MR. A.G.URAIZEE, JJ. MR DHAVAL SHAH, ADVOCATE for the Petitioner MR RJ OZA, ADVOCATE for the Respondent JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mr. R. J. Oza, learned senior standing counsel waives service of notice of rule on behalf of the respondent No.1. 2. Having regard to the controversy involved in the present case, which lies in a very narrow compass, with the consent of the learned counsel for the respective parties, the matter was taken up for final hearing. 3. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 5th February, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as the Tribunal ), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise (No.2) Rules, 2001 also came to be imposed. Being aggrieved, the petitioners carried the matter in appeal before the Tribunal. By the impugned order dated 5th February, 2014, the Tribunal allowed the stay application and remanded the matter to the adjudicating authority to decide the case afresh in de novo adjudication. However, the Tribunal ordered that the main appellant shall deposit an amount of ₹ 20,00,000/- within a period of eight weeks and report compliance to the adjudicating authority and upon verification of payment of such deposit, the adjudicating authority will decide the case afresh in de novo adjudication after giving all relied upon documents to the petitioners and after affording them an opportunity of personal hearing. Being aggrieved by the direction issued by the Tribunal of depositing ₹ 20,00,000/- as a condition precedent for the adjudicating authority to decide the case afresh, the petitioners have filed the present petition. 6. Mr. S. S. Iyer, learned counsel for the petitioners assailed the impugned order by submitting that despite the fact that various documents had been placed on record and brought to its notice, the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount has been made, the impugned order to the extent the same directs deposit of ₹ 20,00,000/-, deserves to be quashed and set aside and the adjudicating authority is required to be directed to decide the case afresh, de novo, without any direction to the petitioners to deposit such amount. 7. Opposing the petition, Mr. R. J. Oza, learned senior standing counsel for the respondent submitted that the Tribunal is vested with discretion to waive the pre-deposit subject to imposing conditions. It was submitted that in the present case, after the issuance of the show cause notice, the petitioners made an application demanding certain documents; however, they did not pursue the same. It was submitted that the petitioners after making the application, had not followed the same any further, nor had they made any efforts to obtain copies of such documents. It was submitted that it was having regard to the conduct of the petitioners that the Tribunal had thought it fit to remand the matter with a condition to deposit ₹ 20,00,000/- to ensure that the petitioners cooperate in the hearing of the case. Referring to the impugned order, it was submitted that in another similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded by the Tribunal that the appellants have indulged in delaying the adjudication proceedings, is clearly erroneous and contrary to the record of the case. As can be seen from the impugned order, the direction to deposit ₹ 20,00,000/- within a period of eight weeks appears to have been given on account of the above finding recorded by the Tribunal that the petitioners have delayed the adjudication proceedings and therefore, are required to be put to certain conditions to ensure that they cooperate in the adjudication proceedings. Under the circumstances, the very basis for imposing such condition is erroneous, inasmuch as, the facts as emerging from the record reveal that the proceedings were delayed not on account of any default on the part of the petitioners, but on account of the fact that the authorities had taken all the cases to the call book. 10. Another relevant aspect of the matter is that along with the appeal, the petitioners had also moved an application for stay seeking the following reliefs : (i) That the appeal preferred by the applicants be admitted by waiving pre-deposit of the duties, interest and penalty confirmed in the impugned order; (ii) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position, the Tribunal in the said case has remanded the matter without any condition of pre-deposit, whereas in the facts of the present case, the Tribunal after erroneously recording that the petitioners had indulged in delaying the adjudication proceedings, has directed to deposit a sum of ₹ 20,00,000/- which is clearly discriminatory. 14. In the aforesaid premises, the impugned order passed by the Tribunal being based upon an erroneous finding of fact as well as being discriminatory qua other assessees, cannot be sustained to the extent the same directs the petitioners to deposit ₹ 20,00,000/- and report compliance to the adjudicating authority. 15. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order dated 5th February, 2014 passed by the Tribunal (Annexure A to the petition) is hereby quashed and set aside, to the extent the same directs the main appellant therein to deposit an amount of ₹ 20,00,000/- within a period of eight weeks and report compliance to the adjudicating authority and further observes that upon verification of payment of such deposit, the adjudicating authority will decide the case afres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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