TMI Blog2017 (6) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order suffers from such perversity so as to shock the conscience of the Court or that, the impugned order is vitiated by malice or has been rendered wholly without jurisdiction. In the present case, no facade of breach of principles of natural justice is pressed into service by the petitioner in assailing the three orders. CESTAT in its second impugned order is of the view that, it is to follow the decision of the High Court as it is of superior authority rather than the larger Bench of the CESTAT itself. As a writ Court, I am not concerned with the decision per se of the authority rather the decision making process of the authority as noted above. I find no material irregularity in decision making process of the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order in original was made over to the petitioner on December 20, 2004. He submits that, the Department has failed to establish that, the order in original dated March 18, 2004 was served upon the petitioner prior to December 20, 2004. There is no reason for the department to serve the second copy of the order in original when the first copy of the order in original was served upon the petitioner. At least, there is no explanation to such effect in the affidavit filed by the Department before the CESTAT. Consequently, the date of commencement of limitation should be taken as December 20, 2004 and not March 18, 2004. Thus the appeal was within limitation. He refers to the impugned order of the Appellate Tribunal which according to him did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of High Court while dealing with the appeal before it without affording an opportunity to the petitioner to deal with such High Court Judgement. Moreover, such judgment of the High Court was dealt with by a larger Bench of CESTAT which ought to have been taken into consideration by CESTAT. The larger Bench decision of the CESTAT is binding on CESTAT. It had erred in not following the larger Bench decision of CESTAT. He relies upon 2006(195) ELT 142 (SC) (Jayaswals Neco Ltd. Vs. Commissioner of Central Excise, Nagpur. 2002 (144) ELT 7 (SC) (Pradip Chandra Parija Vs. Pramod Ch. Patnaik), 2004(174) ELT 310 (SC) (Commissioner of Central Excise, Ahmedabad Vs. Ramesh Food Products) and 1990 (49) ELT 322 (SC) (Union of India Vs. Paras Laminates ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to page 82 of the petition, which is a counter affidavit of the department to the appeal filed by the petitioner before the CESTAT. He submits that, the evidence of dispatch was presented before the CESTAT. He also relies upon various other documents to show that, the Department on March 18, 2004 itself had sent the order in original to the petitioner through speed post. He refers to the averments made in the counter affidavit filed before the CESTAT. The Department had taken a stand that, the envelopes dispatched on March 18, 2004 to the petitioner were not returned to the Department as undelivered . Therefore, the presumption of service will apply. I have considered the rival contentions of the parties and the materials made availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been rendered wholly without jurisdiction. In the present case, no facade of breach of principles of natural justice is pressed into service by the petitioner in assailing the three orders. So far as the first order of the Appellate Authority is concerned, the same is said to suffer from a jurisdictional error inasmuch as the service of the order in original was mis-construed to be on March 18, 2004 rather than on December 21, 2004. With respect, I am not in a position to accept such contention of the petitioner. Section 37C of the Act of 1944 requires an order of the authority to be served by registered post with acknowledgement due. In the present case, the Department had sought to serve the assessee through speed post. Proof of disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly not given an opportunity to deal with. In its second impugned order, CESTAT has followed the order of the superior authority being the High Court rather than the larger Bench in the CESTAT itself. Three precedents are pressed into service on behalf of the petitioner for the proposition that, the earlier decision by the larger Bench of CESTAT is binding upon the Division Bench of the CESTAT. Paras Laminates (supra) is of the view that, earlier decisions of the Tribunal should not be disregarded. The Tribunal, however, has the freedom to refer the issue to larger Bench if it disagrees with a Bench of co-ordinate strength. Jayaswals Neco Ltd. (supra) is of the same view. Ramesh Food Products (supra) is of the view that judicial di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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