TMI Blog2019 (8) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudication proceedings. The CESTAT has observed that in other cases proper hearing was given. Setting aside the orders of the Adjudicating Authority and consequent remand on the first ground that in one of the matters, on one of the dates, no adjournment was granted to one of the parties, is in our opinion, is not at all a good ground to set aside the orders of the Adjudicating Authority and to remand the matter for fresh consideration. Whether the CESTAT had jurisdiction and in any case was justified in ordering the retention of the pre-deposit amount after setting aside the order of the Adjudicating Authority and remanding the matter to the Adjudicating Authority for fresh decision? - HELD THAT:- The CESTAT has itself observed that this is a minor deviation in the adjudication order which does not render that order fatal or even require full waiver of the pre-deposit amount on the face of fraudulent transactions leading to loss of customs duty and wrong availment of CENVAT credit which have not been disputed. If the CESTAT has itself recorded a finding that non tallying of entries, is at the highest, only some minor deviation which does not affect the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s common Judgment and Order whilst setting aside the order of the Adjudicating Authority and remanding the matter to the Adjudicating Authority for fresh consideration, directs retention of pre-deposit amount with the CESTAT. 4. Accordingly, it is only appropriate that both these set of appeals, which in any case were tagged together, are taken up for consideration and disposed of by a common judgment and order. 5. The record reveals that in these appeals, the Assessee had initially appeared through Advocates. The Advocates have since withdrawn their appearance by issuing notices to the Assessee. This Court also adjourned the matters from time to time with a view to offer opportunity to the Assessee to appear in these matters. Such orders were made as late as on 12th June, 2019 as well. Despite all this, the Assessee, has chosen not to appear in these matters. Since, the matters relate to the years 2011 to 2013, it is not possible for us to keep on adjourning these matters any further. 6. Ms. Desai, learned Standing counsel for the Commissioner submits that in this case there was absolutely no violation of principles of natural justice or fair play warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, warrants interference. 8. The appeals instituted by the Commissioner were admitted on the following substantial questions of law :- A) When the Tribunal arrived at the conclusion that the Respondent had been granted hearing before passing the Order by the Commissioner, whether any direction for remand could have been made ? B) When the Tribunal notes that the adjudication order does not expressly refer to the credit entry in RG 23 register and tallying of the same with the amounts figuring in the related invoices on the basis of which Central Excise demand have been made, is specifically held by CESTAT to be a minor deviation the adjudication order. Whether this could form a ground for refund ? C) When the Tribunal has consistently come to the conclusion that attempts were made to derail the adjudication proceedings by various modus operandi and having recorded findings by the Tribunal that the Respondent have not come out with clean hands, whether any indulgence could have been shown to the Respondent and others ? D) Whether remand can be directed without any justifiable and legally tangible reasons ? E) Whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion ? 12. On the first issue, we find that the CESTAT in paragraph 14 of its impugned judgment and order has recorded that the order of the Adjudicating Authority demonstrate that it has made an extensive examination of the case in hand and examined every material fact with the evidence gathered as well as the statements recorded in the course of investigation. The CESTAT has further recorded that the Adjudicating Authority after granting fair opportunity of hearing to the parties, came to the conclusion that not only there was violation of the provisions of the Customs Act, 1962 but further there was violation of the Central Excise Act, 1944. 13. The CESTAT, in paragraph 15 of the common impugned judgment and order further noted that some allegations of bias were made by the Assessees against the Adjudicating Authority however, such allegations were examined and found to be baseless. The CESTAT has noted that even the Assessees did not pursue these allegations of bias any further. The CESTAT has even made observation as regards the conduct of the Assessees and the consequent loss of revenue to the Customs and Excise Authorities. After all this, however, the CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Hon ble Punjab Haryana High Court in the case of Shiv Sewa Sadan Vs. CESTAT, Delhi, 2010(254) ELT 249 (P H) which reads as under : ....................... (Emphasis supplied ) 15. From the aforesaid, it is apparent that the CESTAT has chosen to set aside the orders of the Adjudicating Authority and order a remand to the Adjudicating Authority for fresh consideration, on the following two grounds :- (a) that clients to whom Shri Rawal, learned Senior Advocate who was appearing in the matter, was not granted adjournment and fresh date of hearing; (b) that various orders do not expressly refer to the credit entries in RG 23 register and tally the same with the amounts figuring in the related invoices on the basis of which demand came to be made. 16. Apart from the aforesaid two grounds, at least we do not find any other ground in the common judgment and order which prompted the CESTAT to set aside the orders of the Adjudicating Authority and order remand for fresh consideration. 17. According to us, both the aforesaid grounds were by no means good or sufficient grounds to set aside the orders of the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the ground that the report was not furnished. 20. In State Bank of Patiala (supra), the Hon ble Apex Court has held that while applying the rule of audi alteram partem, the Court/Tribunal/Authority should always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. This objective which should guide them in applying the rule to varying situations which arise before them. There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. The Apex Court has further observed that in case of violation of a procedural provision generally meant for affording a reasonable and adequate opportunity to the parties, it cannot be said that any and every violation vitiates enquiry held or orders passed. The Apex Court has made distinction between cases to cases where no notices were served or no opportunity was granted and cases where no adequate notice or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t both these grounds were not at all germane or even sufficient for ordering a remand, we set aside the impugned judgment and order of the CESTAT and restore the appeals instituted by the Assessees to the CESTAT for fresh evaluation in accordance with law and on their own merits. This course is necessary, because the CESTAT has not at all examined the appeals on merits. 26. Since, we answer the first substantial question of law in the appeals instituted by the Commissioner, in favour of the Commissioner, and against the Assessees, there is really no necessity to decide the second substantial question of law which arises in the appeals instituted by the Assessees. 27. However, we may note that the CESTAT, in support of its direction for retention of pre-deposit amount had placed reliance upon a decision of the Punjab and Haryana High Court in Shiv Sewa Sadan Vs CESTAT New Delhi, 2010 (254) ELT 249. This decision, has been subsequently approved and followed by the Allahabad High Court in the case of Vah Auto Pvt. Ltd. Vs Commissioner of Central Excise Service Tax 2014 LawSuit (All) 318, the Gujarat High Court in Avaya Global Connect Ltd. Now AGC Networks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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